County Court, Sullivan County, October 23, 2019

Zev Goldstein, Monsey, for appellant.

Kenneth C. Klein, Jeffersonville, for respondent.

By decision dated July 18, 2019, this court granted defendant leave to appeal the Town of Liberty Justice Court's coram nobis decision, that is to say, the decision of the Town [*2]Justice^[FN1] which denied the defendant's coram nobis motion to vacate his guilty plea.^[FN2]

Defendant submits appellant brief and rebuttal brief. The People submit respondent brief.

The Town of Liberty Justice Court has filed its "Return" on appeal. The court's "Return" includes defendant's original ticket with plea and fine sentencing letter, defendant's motion and reply affirmation, the People's affirmation in opposition and the April 30, 2019 decision and subsequent letter decision of May 14, 2019, from the Liberty Justice Court denying the defendant's coram nobis motion. This matter has been fully submitted to the court on appeal pursuant to CPL 460.10 and no oral arguments are requested.

The issue on this appeal is whether the Justice Court was in error when it denied defendant's coram nobis motion to vacate{**66 Misc 3d at 173} his guilty plea. The defendant argues that the Justice should have granted his coram nobis motion to vacate on the grounds that he was not aware at the time of his plea of the potential collateral effect that plea would have on his driving privileges and car insurance; namely, that his driver's license would be suspended for obtaining more than 11 points on his license within an 18 month period.

Factual Background

On June 17, 2018, in the Town of Liberty, the defendant was charged by uniform traffic ticket with speeding 82 mph in a 65 mph zone, a violation of Vehicle and Traffic Law § 1180 (d) (a four point violation). On June 30, 2018, the defendant entered a guilty plea by signing the "guilty plea" section on his traffic ticket. At the time of the defendant's guilty plea, he had a five point violation on his driving record as a result of a prior cell phone violation received in New York City on June 9, 2017.^[FN3] Defendant argues that had he been advised as to a potential suspension of his driving privileges he would not have pleaded guilty but instead would have hired an attorney and negotiated to obtain a better resolution of his charge or gone to trial.

Shortly after pleading guilty in the Town of Liberty, the defendant was convicted in the Town of Mamakating Justice Court of speeding 69 mph in a 55 mph zone^[FN4] on December 10, 2018. This resulted in the suspension of the defendant's driver's license by reason of accumulating in excess of 11 moving violation points^[FN5] on his driving record within an 18 month [*3]period.^[FN6] The defendant then hired an attorney and brought a coram nobis motion in the Town of Mamakating and in the Town of Liberty. The Mamakating motion was granted^[FN7] and the Liberty motion was denied. The defendant appeals the Liberty denial of his coram nobis motion based on his failure to be advised of the collateral consequences of his plea.{**66 Misc 3d at 174}

In rendering his subsequent supplemental decision and order dated May 14, 2019, Justice Bauman specifically addressed the defendant's argument that he was not aware of the consequence of a potential suspension of his driving privileges when he pleaded guilty to the charge. The prosecutor Kenneth Klein, Esq., points out that the "language at the bottom of the subject ticket is sufficient to make the Defendant aware of the consequences of his guilty plea."

Directly below, and part of the same sentence as the defendant's signature and his guilty plea, are the following words:

"I Mariusz Jastrzebski have been charged with the violation as specified on the other side of this ticket. I acknowledge receipt of the warning printed in bold type on the other side of this ticket, and I waive arraignment in open court and the aid of an Attorney. I plead GUILTY to the offense as charged and request that the charge be disposed of and a fine or penalty fixed by the court."

And opposite the defendant's signature in bold print is the above mentioned warning as follows:

"A PLEA OF GUILTY TO THIS CHARGE IS EQUAL TO A CONVICTION AFTER TRIAL. IF YOU ARE CONVICTED NOT ONLY WILL YOU BE SUBJECT TO A PENALTY BUT IN ADDITION YOUR LICENSE TO DRIVE A MOTOR VEHICLE OR MOTORCYCLE, AND YOUR CERTIFICATE OF REGISTRATION, IF ANY, ARE SUBJECT TO SUSPENSION AND REVOCATION AS PRESCRIBED BY LAW." (Emphasis added.)

It has been held, both by the New York Court of Appeals and the United States Supreme Court, that a 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 (People v Harris, 61 NY2d 9, 19 [1983]; Boykin v Alabama, 395 US 238, 244 [1969]). It has further been held however that the court is not required to engage in any particular litany when allocuting the defendant, but due process requires that the record must be clear that "the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant" (North Carolina v Alford, 400 US 25, 31 [1970], citing Boykin v Alabama, 395 US 238 [1969]; see also People v Moissett, 76 NY2d 909, 910-911 [1990]). Admittedly, a criminal court or magistrate's town court is not required to advise on all the ramifications of a guilty{**66 Misc 3d at 175} plea personal to a defendant. Accordingly, the courts have drawn a distinction between consequences [*4]of which the defendant must be advised, those which are "direct," and those of which the defendant need not be advised, "collateral consequences" (Fruchtman v Kenton, 531 F2d 946, 948 [1976], cert denied 429 US 895 [1976]; see Michel v United States, 507 F2d 461, 466 [1974]).

The courts have defined a direct consequence as one which has a definite, immediate and largely automatic effect on defendant's punishment (Cuthrell v Director, Patuxent Inst., 475 F2d 1364 [1973], cert denied 414 US 1005 [1973]), and collateral consequences as those specific to an individual defendant such as the loss of the right to vote or travel abroad (Meaton v United States, 328 F2d 379 [1964]), loss of civil service employment (United States v Crowley, 529 F2d 1066 [1976], cert denied 425 US 995 [1976]), or loss of a driver's license (Moore v Hinton, 513 F2d 781 [1975]). Consequently, it has been held that the failure to warn of such collateral consequences will not warrant vacating a plea because they are peculiar to the individual and generally result from the actions taken by agencies the court does not control and may be based upon prior conduct of the defendant unrelated to the specific conviction (see United States v Sambro, 454 F2d 918, 922 [1971]; Sanchez v United States, 572 F2d 210, 211 [1977]), such as, in this case, the Department of Motor Vehicles.

In People v Ford (86 NY2d 397 [1995]) the Court of Appeals, in deciding whether failure to notify the defendant of the possibility of deportation warranted vacating his guilty plea and his judgment of conviction, held that deportation was a collateral consequence of conviction because it was a result peculiar to a defendant's personal circumstances and not within the control of the court system and therefore did not warrant vacating the defendant's conviction. Ford was later overruled in part by the Court of Appeals in People v Peque (22 NY3d 168 [2013]) due to the automatic and legal significance that the potential deportation holds for many non-citizen defendants. However, in overruling in part the Ford decision, the Court of Appeals in Peque reaffirmed the central holding of Ford regarding the duties of a trial court and the distinction between direct and collateral consequences of a guilty plea. The Peque Court was careful to clarify that it was not its intent to affect the central precedent set in the Ford case; namely, that the trial court's failure to provide such advice does not entitle the defendant to{**66 Misc 3d at 176} automatic withdrawal or vacatur of the plea. Rather, the Court of Appeals in Peque pointed out "to overturn his or her conviction, the defendant must establish the existence of a reasonable probability that, had the court warned the defendant of the possibility of [the collateral consequence], he or she would have rejected the plea and opted to go to trial." (Id. at 176.)

Therefore, in order to withdraw or obtain vacatur of a plea, a defendant must show that there is a reasonable probability that he or she would not have pleaded guilty and would have gone to trial had the trial court informed the defendant of the potential collateral consequence. In determining whether the defendant has shown such prejudice, the court should consider, among other things, the favorability of the plea, the potential consequences the defendant might face upon a conviction after trial, and the strength of the People's case against the defendant (People v Peque, 22 NY3d 168 [2013]).

In People v Ali (35 AD2d 435 [3d Dept 1971]), the Appellate Division considered a similar issue. The Ali defendant pleaded guilty to a Penal Law felony and a misdemeanor,^[FN8] and later filed a coram nobis motion looking to vacate his conviction arguing that his counsel had not advised him of his right to appeal. The Appellate Division upheld the [*5]lower court's denial of the defendant's motion to vacate in stating: "defendant failed to allege that he in fact wished to appeal and would have taken a timely appeal had he been properly informed of his rights." (Id. at 437.)

Based on the foregoing legal precedent, this court is constrained to hold that the Town of Liberty Justice Court made no errors of law in its decision dated April 30, 2019, or in its subsequent letter decision dated May 14, 2019, because the "collateral consequences" were written upon the defendant's guilty plea and the defendant's subsequent actions unrelated to the Town of Liberty offense caused his license to be in jeopardy.

At the time this defendant pleaded guilty by mail in the Town of Liberty Justice Court to the offense at bar, he had a five point violation on his driving record. His plea of guilty in the Town of Liberty to the Vehicle and Traffic Law § 1180 (d) {**66 Misc 3d at 177}charge of speeding 82 mph in a 65 mph zone, at bar, added an additional four points to his driving record. The Town Justice Court had no obligation to warn the defendant prior to accepting his written guilty plea that his driver's license could be suspended if he had more, or in the case at bar, he had total points of nine and that 11 points would trigger a suspension of his driving privileges.^[FN9] It was only after the defendant continued to disregard the Vehicle and Traffic Law by subsequently being convicted in the Town of Mamakating Justice Court of speeding 69 mph in a 55 mph zone on December 10, 2018, that the violation points on his driving record reached beyond the 11 points within 18 months threshold that triggered his suspension. Albeit, it should be noted here that the defendant filed a coram nobis motion in the Town of Mamakating after receiving his conviction and subsequent suspension and the Town of Mamakating Court granted that motion and reinstated his driving privileges.

The defendant's claim that he was not aware of the collateral consequence of license suspension is without merit. The uniform traffic ticket clearly states in bold print opposite the defendant's signature and guilty plea "YOUR LICENSE TO DRIVE A MOTOR VEHICLE OR MOTORCYCLE, AND YOUR CERTIFICATE OF REGISTRATION, IF ANY, ARE SUBJECT TO SUSPENSION AND REVOCATION" (emphasis added). Furthermore, the defendant's signature is directly beneath the warning "I acknowledge receipt of the warning printed in bold type on the other side of this ticket, and I waive arraignment in open court and the aid of an Attorney." Having so read and signed these clear warnings there is alleged no ambiguity that he can now be heard to complain that he did not know of the collateral consequences of a possible license suspension or the need for advice of counsel.^[FN10] The defendant's guilty plea was taken knowingly and voluntarily.{**66 Misc 3d at 178}

The defendant offered no proof that had he known on June 30, 2018, that his privileges could be suspended if he were to receive 11 points on his license within 18 months he would have chosen to go to trial, obtain counsel, or negotiate a different plea (see People v Ali). [*6]It is more likely than not that had the defendant known that, it would have and in fact did have no consequence in his final decision to plead guilty to the charge because that plea, which resulted in a total of nine points on his record, did not put his license in danger of being suspended.

The defendant acquiesced to his plea and with his sentence of a fine of $243, following his guilty plea to the charge in the Town of Liberty. He made no attempt to set aside his plea for nearly a year until such time as he received his third violation in the Town of Mamakating Justice Court. The People should not be put in the position of having to litigate a charge one year after a plea simply because the defendant has chosen to wait until he obtains further offenses on his driving record before moving to object to the prior plea. It is well established that cases are best tried while witnesses' memories are fresh and the evidence maintained closest to the proximity of the date of the offense and these time delays are prejudicial to the litigants.

Although a coram nobis motion may be made at any time, defendant herein waited nearly one year to move to vacate his conviction and there is, to this date, no suspension of driving privileges proceeding pending because he has successfully moved in the Town of Mamakating to vacate his most recent conviction and have his driving privileges reinstated. The defendant urges this court to clarify the law with regard to whether the codification of CPL 440.10 superseded the coram nobis relief. Since the court holds that the Town of Liberty Justice Court made no error in refusing to vacate the defendant's conviction, the court finds no reason to address the issue regarding the validity of whether the refusal to vacate the defendant's conviction was determined under the provision of CPL 440.10 or pursuant to the theory of coram nobis. It is the opinion of this court that the result would have been the same under each: a denial of the defendant's request to vacate his speeding conviction.{**66 Misc 3d at 179}

The facts herein presented do not warrant an expansion of the law under either the defendant's due process rights or in the interest of justice.^[FN11]

Based upon the above, it is ordered that defendant's appeal from the decision dated April 30, 2019, and subsequent letter decision dated May 14, 2019, of the Town of Liberty Justice Court is denied and said decision is affirmed.