City Court of Poughkeepsie, June 29, 2018

Zev Goldstein, P.L.L.C., Monsey, for defendant.

Paul F. Ackermann, Corporation Counsel, Poughkeepsie (Victor Aqeel of counsel), for plaintiff.

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 have known the consequences at the time he pleaded 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:

Approximately 14 years ago, defendant pleaded guilty to speeding in violation of Vehicle and Traffic Law § 1180 (d) (68 mph/45 mph) on March 8, 2004, and was fined $90 in the City of Poughkeepsie.^[FN1] The guilty plea for speeding resulted in a six point violation on his driver's license. He was not represented by an attorney at the time he pleaded guilty. Rather, defendant mailed in his guilty plea to the court. Defendant has an extensive history of violations on his driver's abstract, including three alcohol related convictions over the last 25 years. The defendant's three alcohol related convictions were all prior to the enactment of the DMV Commissioner's 2012 rules and regulations which form the basis upon which defendant's license was revoked. In 2017, his application for restoration of his license after his 2010 DWI was denied. Defendant argues that these alcohol convictions, plus this particular six point{**61 Misc 3d at 333} speed violation, have subjected him to a lifetime revocation of his driver's license, pursuant to the DMV Commissioner's new rules and regulations that have resulted in an automatic denial of his application for relicensing. (15 NYCRR part 136;^[FN2] 15 NYCRR 132.2.) Defendant contends that when he pleaded guilty to the speeding ticket more than 14 years ago, he never contemplated rules which would allow the DMV to look back 25 years at convictions on his driver's license that would subject him to permanent revocation of his driver's license. (Velte aff, dated Apr. 18, 2018, ¶ 4.) The new regulations enacted in 2012, and amended in 2013, did exactly this.

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.

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. (Matter of Lyons v Goldstein, 290 NY 19, 25-26 [1943].) Where the CPL 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 NY2d 593 [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 [Seneca County Ct 2015]), on the grounds that he would not have{**61 Misc 3d at 334} pleaded 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 [*2]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 14 years later. (People v Smith, 227 AD2d 655, 656 [3d Dept 1996] [a beneficial sentence received by a defendant is a factor used in determining if a plea was coerced], lv denied 88 NY2d 994 [1996].) Moreover, defendant may not have pleaded 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 New York State Dept. of Motor Vehs., 132 AD3d 112, 121 [3d Dept 2015], affd 29 NY3d 202 [2017], citing Matter of Scism v Fiala, 122 AD3d 1197, 1198 [3d Dept 2014]; see Matter of Kenny v Fiala, 127 AD3d 1359, 1360 [2015]; see also Matter of Lap v Axelrod, 95 AD2d 457 [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 relicensing 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 v New York State Dept. of Motor Vehs., 29 NY3d 202, 229 [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 {**61 Misc 3d at 335}Hecht v Monaghan, 307 NY 461, 469 [1954].) Likewise, defendant's argument that the regulations are prohibited by the Ex Post Facto Clause of the US 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—while the Commissioner's decision to deny defendant's prospective relicensing application was legally proper, and was not retroactive in nature (Matter of Acevedo at 229), 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 [Monroe County Ct 2014].) And while the postplea 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 relicensing 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 NY2d 397, 403 [1995], overruled in part by People v Peque, 22 NY3d 168 [2013] [holding that due process compels a trial court to now [*3]apprise a defendant that if he is not a 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 NY2d 9, 19 [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), the new DMV regulations allowing for lifetime revocations bring a grave impact upon a defendant's ability to{**61 Misc 3d at 336} 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 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.

"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 NYCRR 136.5 [b] [2]).