Opinion
LP7238932
06-29-2018
The PEOPLE of the State of New York, v. Joseph VELTE, Defendant.
Zev Goldstein, P.L.L.C., Attorney for the defendant, P.O. Box 952, 38 Melnick Drive, Monsey, NY 10952 Victor Aqeel, Esq., Asst. Corp. Counsel, Poughkeepsie Corporation Counsel, 62 Civic Center Plaza, Poughkeepsie, NY 12601
Zev Goldstein, P.L.L.C., Attorney for the defendant, P.O. Box 952, 38 Melnick Drive, Monsey, NY 10952
Victor Aqeel, Esq., Asst. Corp. Counsel, Poughkeepsie Corporation Counsel, 62 Civic Center Plaza, Poughkeepsie, NY 12601
Thomas J. O'Neill, J.
Defendant moves by notice of motion, dated April 16, 2018, for coram nobis relief seeking an Order vacating his conviction on the grounds that the defendant had no notice that his guilty plea would have such drastic consequences in the future, to wit: permanent revocation of his driver's license. Defendant contends that he could not know the consequences at the time he pled guilty because the regulations enacted after his plea imposed a lifetime license revocation. The defendant's motion is supported by the affirmation of Zev Goldstein, Esq., dated April 16, 2018, the affidavit of the defendant, dated April 18, 2018, together with Exhibits A-B, and supporting case law. The People have not filed any opposition despite having been duly served. Having considered the motion and having duly deliberated thereon, the Court finds and determines the motion as follows:
FACTS & ARGUMENTS
Approximately fourteen (14) years ago, defendant pled guilty to speeding in violation Vehicle and Traffic Law § 1180(d) [68/45] on March 8, 2004, and was fined $90 in the City of Poughkeepsie. The guilty plea for speeding imposed a six (6) point violation on his driver's license. He was not represented by an attorney at the time he pled guilty. Rather, defendant mailed in his guilty plea via mail to the Court. Defendant has an extensive history of violations on his driver's abstract, including three (3) alcohol related convictions over the last twenty-five (25) years. Defendant argues that these alcohol convictions, plus this particular six (6) point speed violation, has subjected him to a lifetime revocation of his driver's license, pursuant to the DMV Commissioner's new rules and regulations that has resulted in an automatic denial of his application for relicensing. 15 N.Y.C.R.R. Part 136 ; 132.2. Defendant contends that when he pled guilty to the speeding ticket more than fourteen (14) years ago, he never contemplated rules which would allow DMV to look back twenty-five (25) years at convictions on his driver's license that would subject him to permanent revocation of his driver's license. Velte affidavit, dated April 18, 2018, ¶ 4. The new regulations enacted in 2012, and amended in 2013, did exactly this.
The traffic file in this case has been purged, and no longer exists.
"Upon receipt of a person's application for relicensing, the commissioner shall conduct a lifetime review of such person's driving record. If the record review shows that: ... (2) the person has three or four alcohol or drug-related driving convictions or incidents in any combination within the 25 year look back period and, in addition, has one or more serious driving offenses within the 25 year look back period, then the commissioner shall deny the application." 15 N.Y.C.R.R. § 135.5(b)(2).
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Defendant contends that he needs his driving privileges to get to work and maintain a livelihood, and now seeks to withdraw his guilty plea on the grounds that it was not entered knowingly - in that he could have never known that this guilty plea would subject him to permanent revocation by virtue of the enactment of "ex post facto " regulations to the law.
The People have filed no opposition to the motion.
LEGAL ANALYSIS AND CONCLUSION
Article 440 of the Criminal Procedure law provides an avenue for those persons convicted of an offense to petition the trial court to exercise its inherent power to set aside the judgment of conviction on the basis of facts not disclosed prior to judgment due to duress, fraud, or excusable mistake, which, had they been disclosed to the court, would have prevented entry of the judgment. Lyons v. Goldstein, 290 N.Y. 19, 25-26, 47 N.E.2d 425 (1943). Where the C.P.L. § 440.10 statute does not cover the precise situation for which defendant can seek to set aside the judgment of conviction, the motion can be made by relying upon the common law writ, called a coram nobis petition. See, People v. Bachert , 69 N.Y.2d 593, 516 N.Y.S.2d 623, 509 N.E.2d 318 (1987). Defendant has filed a writ of coram nobis here, seeking to vacate the plea he entered in 2004 to speeding [ People v. Wheaton , 49 Misc. 3d 378, 17 N.Y.S.3d 586 (Seneca County Court 2015) ], on the grounds that he would not have pled guilty had he known that permanent revocation of his license could be a consequence of his sentence, especially here where the regulations did not exist at the time defendant's sentence was imposed.
It is indisputable that defendant has been irretrievably harmed by pleading guilty to speeding in 2004, and that he could not have been aware that his plea would result in the permanent revocation of his driver's license fourteen (14) years later. People v. Smith, 227 A.D.2d 655, 656, 641 N.Y.S.2d 905 (3d Dept. 1996) (a beneficial sentence received by a defendant is a factor used in determining if a plea was coerced) appeal denied 88 N.Y.2d 994, 649 N.Y.S.2d 401, 672 N.E.2d 627 (1996). Moreover, defendant may not have pled guilty had he known at the time of his guilty plea what was unknown to everyone. Indeed, the fact that the defendant proceeded pro se is immaterial here, because had defendant retained an attorney, the attorney could not have known that the plea could result in defendant permanently losing his driver's license either since the regulations were imposed after his plea and sentence.
A driver's license is not a vested right, but a personal privilege subject to reasonable restrictions and revocation through exercise of the discretion by the New York State Commissioner of Motor Vehicles. Matter of Acevedo v. N.Y.S. Dept. of Motor Vehicles , 132 A.D.3d 112, 121, 14 N.Y.S.3d 790 (3d Dept. 2015)affirmed 29 N.Y.3d 202, 54 N.Y.S.3d 614, 77 N.E.3d 331 (2017)citing Matter of Scism v. Fiala , 122 A.D.3d 1197, 1198, 997 N.Y.S.2d 798 ; see Matter of Kenny v. Fiala , 127 A.D.3d 1359, 1360, 9 N.Y.S.3d 692 ; see also Matter of Lap v. Axelrod , 95 A.D.2d 457, 467 N.Y.S.2d 920 (1983). Moreover, the DMV regulations have been upheld as constitutional, and did not have a retroactive effect, in that the "Regulations did not rescind petitioners' existing licenses on the basis of prior conduct. Rather, the Regulations applied only to the Commissioner's prospective consideration of petitioners' pending re-licensing applications - a ‘future transaction[ ]’ (id . at 609). The Commissioner's consideration of ‘antecedent events’ - petitioners' driving records - does not, by itself, render the Regulations ‘retroactive’ in nature." [ Matter of Acevedo , 29 N.Y.3d 202, 229, 54 N.Y.S.3d 614, 77 N.E.3d 331 (2017),] the courts still have an obligation to recognize and honor, "those fundamental principles of basic justice and fair play which underlie our entire system of jurisprudence." Matter of Hecht v. Monaghan , 307 N.Y. 461, 469, 121 N.E.2d 421 (1954).Likewise, defendant's argument that the regulations are prohibited by the Ex Post Facto Clause of the U.S. Constitution is misplaced, for ex post facto prohibitions apply only to penal statutes and not to regulations [ Id. ], and this defendant's license was revoked based on these new regulations.
However, in applying fundamental principles of basic justice and fair play to our system of jurisprudence, this Court finds that - through no fault of the People or the trial court - that while the Commissioner's decision to deny defendant's prospective re-licensing application was legally proper, and was not retroactive in nature ( Matter of Acevedo, supra at 229, 54 N.Y.S.3d 614, 77 N.E.3d 331 ), it remains that the defendant's 2004 guilty plea could not have been knowingly, intelligently, and voluntarily entered into. See generally, People v. Luther , 48 Misc. 3d 699, 12 N.Y.S.3d 491 (Monroe County Court 2014). And while the post-revocation consequences (i.e., license revocation) at issue here have been deemed by the Courts to be a collateral consequence, it remains that the lifetime revocation and re-licensing provisions enacted after defendant's plea - were wholly unavailable as part of this defendant's contemplative consideration prior to pleading guilty. Moreover, the collateral consequence of losing his license permanently, is not ancillary to the main issue in this particular instance. Similarly, the lifetime loss of one's license was not even part of the consideration when the Court of Appeals considered the various collateral consequences that arise out of a plea, such as ‘loss of a driver's license’. People v. Ford , 86 N.Y.2d 397, 403, 633 N.Y.S.2d 270, 657 N.E.2d 265 (1995)overturned in part by People v. Peque , 22 N.Y.3d 168, 980 N.Y.S.2d 280, 3 N.E.3d 617 (2013) (holding that due process compels a trial court to now apprise a defendant that if he is not an citizen, he may be deported as a consequence of a guilty plea - for immigration consequences are of such tremendous importance with such a grave impact and frequent occurrence that a defendant is entitled to notice that it may ensue from a plea).
The trial court has the constitutional duty to ensure that a defendant, before pleading guilty has a full understanding of what the plea connotes and its consequences, but it need not engage in any particular litany when allocuting the defendant. People v. Harris , 61 N.Y.2d 9, 19, 471 N.Y.S.2d 61, 459 N.E.2d 170 (1983). Similar to the Court of Appeals' reconsideration of the need to inform a defendant that their guilty plea may have immigration consequences [ People v. Peque , supra ], the new DMV regulations allowing for lifetime revocations brings a grave impact upon a defendant's ability to maintain a living or earn wages for the remainder of his working years - all hinged upon the ability to drive to his place of employment. No license for a lifetime as a result of a plea would be of tremendous importance to know. Indeed, no driver's license may transpose the defendant, at the age of thirty-eight (38), from a working member of society to a public charge upon society - something he could not have known was part and parcel to his punishment at the time of his plea to speeding.
THEREFORE, based upon the foregoing, it is hereby
ORDERED , that the defendant's motion to vacate his guilty plea and judgment of conviction is GRANTED, without opposition from the People.