Opinion
3947/2013.
12-02-2014
The PEOPLE of the State of New York v. Raul SERRANO.
The Legal Aid Society Scott Spivak, Attorney for defendant. Office of the District Attorney, Bronx County, Joseph Scolavino.
The Legal Aid Society Scott Spivak, Attorney for defendant.
Office of the District Attorney, Bronx County, Joseph Scolavino.
Opinion
MIRIAM R. BEST, J.For the reasons that follow, defendant's motion to dismiss the indictment for a constitutional and statutory double jeopardy violation is denied.
Procedural History
Defendant is charged with Aggravated Unlicensed Operation of a Motor Vehicle in the First, Second and Third Degrees (VTL §§ 511[3][a][ii], 511[2][a][iv], 511[1][a] ). These charges arise out of an incident that allegedly occurred on November 20, 2013, at approximately 1:49 pm, at the corner of Sampson and Brinsmade Avenues in the Bronx, when Police Officer Albert Garcia observed defendant driving a gray Jeep Cherokee that had no front license plate and whose rear license plate had a cover obstructing the name of the issuing state (Decision of September 2, 2014 at pp. 1–2). Defendant allegedly told Garcia that he believed his license was suspended (id. at p. 2). Defendant was arrested and charged with VTL §§ 511(3)(a)(ii), 511(2)(a)(iv), and 511(1)(a). He was also given traffic tickets for the covered plate (VTL § 402 –1) and Unlicensed Operation of a Motor Vehicle (VTL § 509[1] ) (id.; Def. Exh. A [Ticket Numbers AAW7112873, AAW7112884] ).
Defendant was arraigned in Criminal Court, Bronx County, on November 21, 2013. The complaint alleged that defendant had at least ten suspensions on ten dates; in fact, when Garcia ran the client ID number that appeared on defendant's New York State identification card through a police computer connected to the New York State Department of Motor Vehicles (“DMV”) database, the computer showed that defendant's license was suspended 57 times, specifically, 50 suspensions on 13 dates (Decision of September 2, 2014 at p. 2). Defendant waived his
right to testify before the Grand Jury, which returned the indictment on December 12, 2013 (Scolavino Aff. ¶¶ 9–11).
On April 14, 2014, the New York State Department of Motor Vehicles sent defendant a letter entitled “Notice of Default Conviction and License Suspension.” The letter states, in relevant part:
Your driver license, or privilege to drive in New York State, was suspended on 02/10/14 for failure to answer the traffic ticket you received on 11/20/13 in Bronx for unlicensed GT 60 days.
On 4/14/14 you were convicted of this offense because you failed to answer the ticket.
(Def. Exh. B.) It is undisputed that this proceeding occurred in the Traffic Violations Bureau (“TVB”). To clear the suspension of his license defendant was required to pay a fine, surcharges and fees totaling $528.00 to the Commissioner of Motor Vehicles (id. ).
On August 28, 2014, this Court held a combined Dunaway/Huntley hearing on defendant's motion to suppress statement evidence. On September 2, this Court denied the motion. This motion followed.
The Parties' Contentions
Defendant now moves for an order dismissing the indictment, pursuant to the United States Constitution, Amendment V, the New York State Constitution, Article 1 § 6, and CPL § 40.20. With respect to the U.S. and New York State Constitutions, defendant argues that because Unlicensed Operation under VTL § 509(1) is a lesser included offense of each of the counts of Aggravated Unlicensed Operation charged in the indictment, his default conviction for the traffic infraction of Unlicensed Operation on April 14, 2014, bars a subsequent trial on the felony and misdemeanor counts. With respect to CPL § 40.20, defendant, relying on VTL § 1806–a, argues that the traffic ticket for VTL § 509(1) resulted in a conviction upon a plea of guilty for the same criminal transaction that is charged in the indictment, and that none of the statutory exceptions provided for in CPL § 40.20 applies in this case.
The People oppose defendant's motion, arguing that neither federal nor state double jeopardy principles bar his trial for Aggravated Unlicensed Operation after his conviction by default for Unlicensed Operation in the TVB. The People do not address defendant's lesser included offense claim directly, but argue that each count of Aggravated Unlicensed Operation of a Motor Vehicle “requires proof of a fact of which the VTL § 509 does not, and vice versa” (Scolavino Memo p. 8). With respect to CPL § 40.20, the People argue that the traffic infraction of Unlicensed Operation is designed to prevent a very different type of harm from that addressed by the crimes of driving with a suspended or revoked license. They also argue that because the TVB lacks jurisdiction over misdemeanors and felonies, defendant has not been “ previously prosecuted” within the meaning of CPL § 40.30.
In a reply brief, defendant urges the Court not to view the default conviction as a civil penalty, although he concedes (Reply Mem. at 7) that “there is an ostensible basis” for doing so. Rather, he argues that the default conviction was a previous prosecution requiring dismissal of this indictment. He also makes an equal protection argument and challenges the People's statutory analysis.
Analysis
The Double Jeopardy Clause of the Fifth Amendment of the U.S. Constitution provides that no “person [shall] be subject for the same offense to be twice put in jeopardy of life or limb.” Hudson v. U.S., 522 U.S. 93, 98, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997). This federal protection is applicable to the states through the Due Process Clause of the Fourteenth Amendment, Illinois v. Vitale, 447 U.S. 410, 415, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980). As the Court explained, “[t]he Clause protects only against the imposition of multiple criminal punishments for the same offense (citations omitted), and then only when such occurs in successive proceedings (citation omitted).” Hudson v. U.S., 522 U.S. at 99, 118 S.Ct. 488 (emphasis in original). The Double Jeopardy Clause
has been held to consist of three separate guarantees: (1) “It protects against a second prosecution for the same offense after acquittal. [ (2)I]t protects against a second prosecution for the same offense after conviction. [ (3) ] And it protects against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969) (footnotes omitted).
Illinois v. Vitale, 447 U.S. at 415, 100 S.Ct. 2260. The principal test for determining whether two offenses are the same for double jeopardy purposes is the “same elements” test of Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). “The same elements test ... inquires whether each offense contains an element not contained in the other; if not, they are the same offense' and double jeopardy bars additional punishment and successive prosecution.” U.S. v. Dixon, 509 U.S. 688, 696, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993) (overruling the “same conduct” test of Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 [1990] ). A lesser included offense is the “same offense” for double jeopardy purposes, Brown v. Ohio, 432 U.S. 161, 169, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977) ; People v. Biggs, 1 N.Y.3d 225, 230, 771 N.Y.S.2d 49, 803 N.E.2d 370 (2003) ; People v. Wood, 95 N.Y.2d 509, 514, 719 N.Y.S.2d 639, 742 N.E.2d 114 (2000).
“[I]n New York, protection against double jeopardy is statutory as well as constitutional.” In re Polito v. Walsh, 8 N.Y.3d 683, 686, 840 N.Y.S.2d 1, 871 N.E.2d 537 (2007). The New York State Constitution provides that “[n]o person shall be subject to be twice put in jeopardy for the same offense,” N.Y. Const., Art. I, § 6. The double jeopardy statute, CPL § 40.20, has two provisions. CPL § 40.20(1) provides that “[a] person may not be twice prosecuted for the same offense.” An offense is defined in CPL § 40.10(1) :
An “offense” is committed whenever any conduct is performed which violates a statutory provision defining an offense; and when the same conduct or criminal transaction violates two or more such statutory provisions each such violation constitutes a separate and distinct offense.
“CPL 40.20(1) provides, at most, no more double jeopardy protection than the [federal] and [state] Constitutions do,” In re Polito, 8 N.Y.3d at 690, 840 N.Y.S.2d 1, 871 N.E.2d 537. Broader protections against double jeopardy are provided by CPL § 40.20(2), id. Plainly, a lesser included offense must also be “the same offense” for purposes of state double jeopardy protection.
Although the People do not address defendant's claim that Unlicensed Operation of a Motor Vehicle is a lesser included offense of the felony and misdemeanors for which he was indicted, defendant is correct on this point. People v. Pacer, 6 N.Y.3d 504, 507, 513, 814 N.Y.S.2d 575, 847 N.E.2d 1149 (2006) (Appellate Division correctly held that trial court should have granted defendant's application to charge VTL § 509[1] as lesser included offense of VTL § 511[3][a] because “a reasonable juror could have found that defendant drove without a license yet lacked knowledge or a reason to know that his New York license had been revoked.”); People v. Gribben, 164 A.D.2d 944, 945, 560 N.Y.S.2d 52 (2d Dept.1990) (“As conceded by the People, driving without a license under Vehicle and Traffic Law § 509(1) is a lesser included offense of aggravated unlicensed operation of a motor vehicle in the first degree under Vehicle and Traffic Law § 511[3].”). Accordingly, if defendant was prosecuted for the VTL § 509(1) traffic infraction when his license was suspended and the fine was imposed on April 14, 2014, then this Court would be constrained to dismiss this indictment under the federal and state constitutions and CPL § 40.20(1). For the reasons that follow, however, defendant was not prosecuted within the meaning of the double jeopardy rules and his motion is denied.
Defendant Was Not Previously Prosecuted In This Case
Defendant's claims rest on his assertion that he was prosecuted by a simplified traffic information for violating VTL § 509(1) “when he was convicted by plea of guilty based upon his failure to answer on” April 14, 2014 (Spivak Aff. ¶ 19). He points first to CPL § 40.30(1)(a), which provides, in relevant part, that a person “is prosecuted” for an offense within the meaning of CPL § 40.20 when he is charged with an offense by an accusatory instrument filed in a court of this state or of any jurisdiction within the United States, and when the action either “[t]erminates in a conviction upon a plea of guilty” or proceeds to a trial and the impaneling and swearing of a jury or the swearing of a witness in a bench trial. He next quotes a portion of VTL § 1806–a(1), which provides that
[i]n the event a person charged with a traffic infraction does not answer within the time specified, the court having jurisdiction, other than a court in a city over one million population may, in addition to any other action authorized by law, enter a plea of guilty on behalf of the defendant and render a default judgment of a fine determined by the court within the amount authorized by law. Any judgment entered pursuant to default shall be civil in nature, but shall be treated as a conviction for the purposes of this section.
Defendant omits the qualifying clause “other than a court in a city over one million population” (Spivak Aff. ¶ 22; Reply Mem. p. 15).
Defendant omits the qualifying clause “other than a court in a city over one million population” (Spivak Aff. ¶ 22; Reply Mem. p. 15).
Defendant claims that “the Traffic Violations Bureau had jurisdiction over” him (Spivak Aff. ¶ 23) and that “[t]he New York Traffic Violations Bureau is a court' within the meaning of [CPL § ] 40.30” (Reply Mem. p. 15 fn. 1). Relying on In re Booth v. Clary, 83 N.Y.2d 675, 613 N.Y.S.2d 110, 635 N.E.2d 279 (1994), Hill v. Eppolito, 196 Misc.2d 616, 766 N.Y.S.2d 509 (Sup.Ct., Madison County 2003), aff'd, 5 A.D.3d 854, 772 N.Y.S.2d 634 (3d Dept.2004), and Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 29 S.Ct. 67, 53 L.Ed. 150 (1908), defendant claims that the “adjudication of a summons for V.T.L section 509 is judicial in nature, thus making it functionally indistinguishable from a prosecution for the same charge in a local criminal court” (Reply Mem. p. 16 fn. 1). For the reasons that follow, these arguments fail.CPL § 10.10 provides that the criminal courts of this state are comprised of the superior courts and the local criminal courts. Superior courts include the supreme court and a county court. Local criminal courts include a district court, the New York City criminal court, a city court, a town court, a village court, a supreme court justice sitting as a local criminal court or a county judge sitting as a local criminal court (CPL §§ 10.10[1][a], [b] ; [2][a]-[g] ). Plainly, the TVB is not enumerated as a court in CPL § 10.10.
Moreover, while traffic infractions were previously heard in criminal courts, the legislative enactment, in 1969, of Article 2–A of the VTL specifically authorized administrative adjudication of traffic infractions in cities with a population of over one million people. At that time,
The population requirement is now two hundred thousand or more, VTL § 225.
[a]n explicit restriction was imposed that “no penalty shall include imprisonment” (citation omitted). The Legislature also discontinued treating such infractions as misdemeanors for procedural purposes (citation omitted).
Matter of Rosenthal v. Hartnett, as Hearing Officer of the Administrative Adjudication Bureau of the City of New York, et al., 36 N.Y.2d 269, 271, 367 N.Y.S.2d 247, 326 N.E.2d 811 (1975). In Rosenthal, Court of Appeals had to determine “whether the Legislature may constitutionally authorize administrative rather than judicial adjudication of traffic infractions and as an incident thereto establish clear and convincing evidence' as the required quantum of proof for a determination of guilt where such determination may result in the imposition of a fine but not imprisonment,” 36 N.Y.2d at 271, 367 N.Y.S.2d 247, 326 N.E.2d 811. In upholding the administrative adjudication of traffic violations, the Court noted that the legislative declaration which accompanied the 1969 enactment is pointed: Statement of findings and purpose. The legislature hereby finds that the incidence of crime in the larger cities of this state has placed an overwhelming burden upon the criminal courts thereof. This burden, when coupled with the responsibility for adjudicating such non-criminal offenses as traffic infractions, has resulted in a situation in which the prompt and judicious handling of cases becomes virtually impossible. Despite the efforts of all concerned, this situation has often resulted in lengthy incarceration of defendants before trial, and the inability to grant a trial date for periods of up to one year, and longer. Because the injustices resulting from the present system cannot
be corrected unless the workload of the criminal courts is substantially reduced, the legislature finds that it is necessary and desirable to establish a system for the administrative adjudication of traffic infractions in cities having a population of one million or more. Such a system will not only contribute to the more judicious disposition of criminal matters, by reducing the overwhelming workload of the criminal courts, but will also provide for the speedy and equitable disposition of charges which allege moving traffic violations (citation omitted).
36 N.Y.2d at 273, 367 N.Y.S.2d 247, 326 N.E.2d 811 (emphasis supplied).
“Whenever a crime and a traffic infraction arise out of the same transaction or occurrence, a charge alleging both offenses may be made returnable before the court having jurisdiction over the crime,” VTL § 225(1) (emphasis supplied), but that was not done here, and the infraction was disposed of on default in the TVB. The burden of proof in that administrative tribunal was clear and convincing evidence, not proof beyond a reasonable doubt (VTL § 227[1] ), and the hearing officer had no power to impose a sentence of imprisonment (VTL § 227[4a] ). The only possible penalties, which were imposed here, were a fine and suspension of defendant's driver's license (VTL §§ 225[3], 227[4a] ). The TVB's determination was subject to administrative review by an appeals board (VTL §§ 228 [1, 3] ); judicial review pursuant to CPLR Article 78 would only be available if a hearing had been held in the TVB and the transcript submitted at the time the appeal was filed (VTL § 228 ). Finally, despite defendant's assertion that the TVB entered “a plea of guilty” when it found him in default (Spivak Aff. pps. 7, 8), “[a]n order entered upon the failure to answer or appear ... shall be civil in nature, but shall be treated as a conviction for purposes of this chapter ” (VTL § 227[4a], emphasis supplied).
The TVB is governed by VTL Article 2–A and 15 NYCRR 121.1 –125.4. Article 2–A simply does not contain any provision permitting the TVB, as opposed to a court, to “enter a plea of guilty on behalf of the defendant.” Instead, a motorist's “[f]ailure to answer or appear in accordance with the requirements of this section and any regulations promulgated hereunder shall be deemed an admission to the violation as charged, and an appropriate order may be entered in the department's records, and a fine consistent with the provisions of this chapter and regulations of the commissioner may be imposed by the commissioner or person designated by the commissioner” (VTL § 226[3][b], emphasis supplied). A “deemed admission” on default in the TVB is not recognized as a manner in which a guilty plea may be entered pursuant to CPL § 340.20(2). Contrast VTL § 225(1) (all violations “of a law, ordinance, order, rule or regulation relating to traffic ... which occur within a city having a population of two hundred thousand or more in which administrative tribunals have heretofore been established ... and which are classified as traffic infractions, may be heard and determined pursuant to the regulations of the commissioner as provided in this article.... Nothing herein provided shall be construed to prevent a court, having jurisdiction over a criminal charge relating to traffic or a traffic infraction, from lawfully entering a judgment of conviction, whether or not based on a plea of guilty, for any offense classified as a traffic infraction [emphasis supplied].”). In addition, 15 NYCRR 121.2 states that the regulations established by the Commissioner of Motor Vehicles govern the operation of the TVB and “[t]he infractions are civil in nature, and proceedings before the bureau are not subject to the requirements of the Criminal Procedure Law.” See also, In re Connors v. New York State Department of Motor Vehicles, 81 A.D.3d 479, 479–80, 916 N.Y.S.2d 92 (1st Dept.2011) (“It is well established that the CPLR and CPL are not binding on respondent and the procedures set forth therein do not apply to proceedings conducted by it unless specifically authorized (see 15 NYCRR 123.1 ).”); In re Stamos v. the Appeals Board of the New York State Department of Motor Vehicles, 309 A.D.2d 572, 765 N.Y.S.2d 342 (1st Dept.2003) (rejecting petitioner's contention that “in the context of administrative proceedings respecting alleged traffic infractions” pursuant to VTL Article 2–A he was entitled to rely on CPL provisions providing for supporting deposition and speedy trial), lv. denied, 1 N.Y.3d 505, 775 N.Y.S.2d 782, 807 N.E.2d 895 (2003).
In sum, the TVB is not a court of this state, and therefore defendant was not previously prosecuted for any offense arising out of his driving on November 20, 2013. See, Beck v. City of New York, et al., 2014 WL 80544, *4 (S.D.N.Y.2014) (driving without a license is not a criminal offense for purposes of a federal § 1983 malicious prosecution claim; “the traffic court proceeding is civil in nature” and was thus “a regulatory rather than a ‘criminal proceeding.’ ” [citation omitted].); People v. McCray, Ind. No. 909/2007 at pp. 1, 3–4 (Sup.Ct., Bronx County 2009) (Dawson, J.) (resolution of traffic ticket charging violation of VTL § 509[1] in DMV Administrative Adjudication Bureau not a “previous prosecution” for double jeopardy purposes; DMV Administrative Adjudication Bureau not “a court of this state”); In re Voccola, as Acting Director of the Parking Violations Bureau of the City of New York v. Shilling, as Judge of the Civil Court of the City of New York et al., 88 Misc.2d 103, 108, 388 N.Y.S.2d 71 (Sup.Ct., Kings County 1976) (“a default judgment of the [Parking Violations Bureau] is a judgment rendered exclusively by that administrative agency and not by the Civil Court, and, further, ... it was never meant to be nor does it ever become a judgment of the Civil Court”), aff'd,57 A.D.2d 931, 394 N.Y.S.2d 577 (2d Dept.1977) ; In re Brawer v. Criminal Court of the City of New York, et al., 47 Misc.2d 411, 412, 261 N.Y.S.2d 990 (Sup.Ct., Special Term New York County 1965) (“Double jeopardy may not be predicated on departmental trials.... Prosecution does not debar discipline; nor does discipline debar prosecution.”); People v. United Bus Corporation, 102 Misc.2d 1097, 1098, 424 N.Y.S.2d 1008 (Dist.Ct., Suffolk County 1980) (“The Administrative Adjudications Bureau [where corporate defendant pled guilty to VTL violation for excessive exhaust] is not a court. Thus, by statutory definition there has been no previous prosecution in this case.”).
Despite this analysis, the court in United Bus Company granted the motion to dismiss on the grounds that equal protection considerations required dismissal under CPL § 40.20(2), 102 Misc.2d at 1098–99, 424 N.Y.S.2d 1008. The Court of Appeals, however, had specifically rejected a similar claim in Matter of Rosenthal v. Hartnett, supra, concluding that “[e]qual protection does not require territorial uniformity of a law within a state (citations omitted),” 36 N.Y.2d at 274, 367 N.Y.S.2d 247, 326 N.E.2d 811. For the same reasons, defendant's current equal protection argument (Reply Mem. p. 13) also fails.
Nor do the cases cited in defendant's reply brief compel this Court to hold that the TVB is “a court of this state” for purposes of double jeopardy. In In re Booth v. Clary, 83 N.Y.2d 675, 613 N.Y.S.2d 110, 635 N.E.2d 279 (1994), the Court of Appeals held that a military tribunal was a court “of any jurisdiction within the United States” within the meaning of CPL § 40.30(1). Booth, who was charged with rape and other crimes under the Uniform Code of Military Justice, was sentenced to confinement at hard labor after a trial by a military judge, 83 N.Y.2d at 677, 613 N.Y.S.2d 110, 635 N.E.2d 279, and Bridgewater was sentenced to one year's imprisonment after he entered a guilty plea before a military tribunal that found him guilty of involuntary manslaughter under the Uniform Code of Military Justice, id. at 678, 613 N.Y.S.2d 110, 635 N.E.2d 279. These prior prosecutions barred the District Attorney of Jefferson County from proceeding against Booth or Bridgewater under indictments charging violations of New York law for the identical conduct. The Court of Appeals took guidance from the fact that a court-martial adjudication constitutes a prior felony for purposes of second felony offender sentencing under New York law, and that, for federal constitutional double jeopardy purposes, a military court-martial adjudication is treated as the equivalent of a federal district court judgment, id. at 679–80, 613 N.Y.S.2d 110, 635 N.E.2d 279. Here, in sharp contrast, defendant was not charged with any crimes in the TVB, which has no jurisdiction over felonies or misdemeanors and cannot and did not impose any jail sentence.
Similarly, in Hill v. Eppolito, 196 Misc.2d 616, 766 N.Y.S.2d 509 (Sup.Ct., Madison County 2003), aff'd, 5 A.D.3d 854, 772 N.Y.S.2d 634 (3d Dept.2004), the defendant was charged in Oneida City Court with the violation of harassment, based on an allegation that he repeatedly bumped a female Oneida Indian Nation member with his stomach, causing her to fall back on her mother and causing her mother to fall. He was thereafter charged in Oneida Indian Tribal Court with assault in the third degree, harassment as a violation and disorderly conduct, based on the same conduct. A jury trial in Tribal Court proceeded first. 196 Misc.2d at 617, 766 N.Y.S.2d 509. In affirming the granting of Hill's Article 78 petition to enjoin the Oneida City Court prosecution, the Appellate Division held that “[t]he Oneida Indian Nation has enacted a Penal Code and Rules of Criminal Procedure providing the mechanism for enforcement of that Code, and its tribal courts clearly qualify as courts of any jurisdiction within the United States,” 5 A.D.3d at 856, 772 N.Y.S.2d 634. Like Booth v. Clary, this case is entirely distinguishable from the present case.
Prentis v. Atlantic Coast Line Company, 211 U.S. 210, 29 S.Ct. 67, 53 L.Ed. 150 (1908), is also inapposite. Prentis was not a double jeopardy case, but rather a federal preemption case “brought ... to enjoin the members and clerk of the Virginia State Corporation Commission from publishing or taking any other steps to enforce a certain order fixing passenger rates,” 211 U.S. at 216, 29 S.Ct. 67. The Supreme Court “assume[d] that, for some purposes [the State Corporation Commission was] a court within the meaning of [the relevant federal statute forbidding federal courts from enjoining the proceedings of state courts] and in the commonly accepted sense of that word,” id. at 224, 29 S.Ct. 67. Thus, Prentis does not advance defendant's claim.
Moreover, the imposition of civil and criminal penalties for the same conduct does not violate constitutional double jeopardy protections. See,Hudson v. United States, supra, 522 U.S. at 95, 118 S.Ct. 488 (“The Government administratively imposed monetary penalties and occupational debarment on petitioner for violation of federal banking rules, and later criminally indicted them for essentially the same conduct. We hold that the Double Jeopardy Clause of the Fifth Amendment is not a bar to the later criminal prosecution because the administrative proceedings were civil, not criminal.”); Vasquez et al. v. Lalor, Judge of Green County Court, et al., 89 N.Y.2d 521, 529, 655 N.Y.S.2d 870, 678 N.E.2d 482 (1997) (rejecting inmates' claims that internal administrative disciplinary hearings followed by imposition of a disciplinary penalty including time in Special Housing Unit, loss of privileges and loss of good time credit barred subsequent criminal prosecution for the same conduct on double jeopardy grounds; although disciplinary sanctions did “in some sense, constitute a form of punishment,” that conclusion did not mandate a conclusion that the sanctions constituted punishment within the meaning of double jeopardy because “[p]rison disciplinary action is not designed to vindicate public justice,' but rather to further the separate and important public interest in maintaining prison order and safety.”), cert. denied sub nom. Cordero v. Lalor, 522 U.S. 846, 118 S.Ct. 131, 139 L.Ed.2d 80 (1997) ; Barnes v. Tofany, as Commissioner of Motor Vehicles, 27 N.Y.2d 74, 78, 313 N.Y.S.2d 690, 261 N.E.2d 617 (1970) (Commissioner of Motor Vehicles' decision to suspend petitioner's driver's license for 60 days upon a finding that he was grossly negligent for drinking alcohol prior to vehicle accident did not bar subsequent suspension of his driver's license for 60 days after conviction for driving while ability impaired [VTL § 1192(1) ]; “[t]he constitutional prohibitions against double jeopardy and double punishment do not prevent the Legislature from enacting and the executive from enforcing, civil as well as criminal sanctions for the same conduct .... suspension or revocation of the privilege of operating a motor vehicle is essentially civil in nature, having as its aims chastening of the errant motorist, and, more importantly, the protection of the public from such a dangerous individual”); People v. Edmonson, 300 A.D.2d 317, 751 N.Y.S.2d 280 (2d Dept.2002) (civil forfeiture of assets did not bar subsequent criminal prosecution; “[t]he civil forfeiture action does not constitute criminal punishment' within the meaning of Double Jeopardy”), lv. denied, 99 N.Y.2d 614, 757 N.Y.S.2d 824, 787 N.E.2d 1170 (2003), habeas denied, 2006 WL 3486769 (E.D.N.Y.2006).
Thus, defendant's claim (Reply Mem. p. 9) that “the punitive attributes of V.T.L. Section 509(1) and a weighing of the Hudson factors [see 522 U.S. at 99–100, 118 S.Ct. 488 ] clearly support a finding that the traffic infraction of Unlicensed Operation imposes a criminal, not a civil penalty” is unpersuasive. When imposed in the TVB, as they were here, the license suspension and fine for a VTL § 509(1) traffic infraction serve a remedial purpose. See also People v. McCray, supra, Ind. No. 909/2007 at p. 3 (characterizing VTL § 509(1) as “a revenue measure”). In any event, the Court in Hudson observed that “[i]f a sanction must be solely' remedial (i.e., entirely nondeterrent) to avoid implicating the Double Jeopardy Clause, then no civil penalties are beyond the scope of the Clause,” 522 U.S. at 104, 118 S.Ct. 488.
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Finally, because defendant has not been prosecuted within a court of this state for his alleged actions on November 20, 2013, it is unnecessary for this Court to consider his arguments for dismissal under CPL § 40.20(2).Conclusion
For all of these reasons, neither the Fifth Amendment, the New York State Constitution nor CPL § 40.20 requires dismissal of the indictment for a double jeopardy violation. Defendant's motion is therefore denied.
This opinion constitutes the decision and order of this Court.