Justice Court of the Town of Deerpark, Orange County, December 12, 2022

Law Offices of Zev Goldstein, PLLC, New City (Zev Goldstein of counsel), for defendant.

John E. Bach, Jr., Special Prosecutor, Huguenot, for plaintiff.

Procedural History

Defendant filed a motion with this court to vacate his 2006 guilty plea to a violation of section 1180-B of the Vehicle and Traffic Law entered on November 27, 2006, in the Deerpark Town Court. Defendant asserts, inter alia, that his lifetime driving privileges in the State of New York are permanently revoked because he has accumulated more than 20 points within a 25-year period, pursuant to a rule promulgated by the Commissioner of the Department of Motor Vehicles in 2012. Defendant states that, had he known that such a plea would subject him to a lifetime revocation, he would not have pleaded guilty to the speeding violation. The People, by way of an affirmation of opposition, filed by John E. [*2]Bach, Jr., Esq., oppose the motion and request the relief sought by defendant be denied. Defendant filed a reply affirmation to the People's opposition.

Findings of Fact

Defendant was issued a simplified traffic information on or about October 29, 2006, for speeding, 69 mph in a 55 mph zone, in violation of section 1180-B of the Vehicle and Traffic Law. Defendant subsequently pleaded guilty to the charge by mail and was fined $125 with a $55 surcharge. As a result of his guilty plea, the New York State Department of Motor Vehicles assessed four points on his driving license. The original ticket was later physically disposed of by the Town Clerk of{**77 Misc 3d at 1093} the Town of Deerpark pursuant to the approval of the Office of Court Administration. An electronic record of the docket is maintained in this court's management software.

On September 25, 2012, 15 NYCRR part 136 was amended to impose a 25-year "look back" period which authorized the Commissioner of the Department of Motor Vehicles (hereinafter referred to as the Commissioner) to deny an application for relicensing under specific, enumerated circumstances. Relevant herein is section 136.5 (b) (2) which authorizes the Commissioner to deny relicensing if "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." A serious driving offense includes "20 or more points from any violations" (id. § 136.5 [a] [2] [iv]).

According to defendant's lifetime driving abstract, he has three alcohol related convictions, to wit:

May 5, 2009, in Sullivan County, Town of Liberty

October 25, 2001, Orange County, U.S.M.A. West Point Court

September 5, 2001, Orange County, Village of Washingtonville

Additionally, defendant has accumulated a total of 35 points between May 21, 1997, and November 27, 2006. The look back period, pursuant to the rules of the Commissioner, commences "25 years before the date of the revocable offense" (id. § 136.5 [a] [3]). Here, defendant's revocable offense was a conviction on May 5, 2009, for operating a motor vehicle with .08% or more alcohol in his blood, making the look back period commencing on May 5, 2009, and looking back 25 years to May 5, 1984. Accordingly, all of the defendant's 35 accumulated points fall within the 25-year look back period.

Under the Commissioner's rules as promulgated in 15 NYCRR 136.5 (b) (2), the combination of defendant's alcohol related convictions and accumulated points make him ineligible for relicensing in the State of New York.

Analysis

In the present matter before the court, defendant seeks to vacate his guilty plea which resulted in a conviction entered on or about November 27, 2006. In the motion filed with this court, defendant concedes to the facts of the case, and elaborates that "he understood that the ticket carried 4 points, and that his drivers' license would not be suspended until he reached 11{**77 Misc 3d at 1094} points." Defendant raises several issues in support of his motion to vacate the judgment:

1. Defendant "never dreamed that he could receive a lifetime drivers' license revocation predicated on this conviction." Defendant "did not understand that his plea of guilty would cause a lifetime revocation." Defendant pleaded guilty "to this speeding ticket without any notice of a potential lifetime driver's license revocation."

2. The defendant's accumulated points and combination of alcohol related convictions subject him to the "draconian lifetime consequence" of being ineligible for relicensing.

3. "To the extent that original records are no longer available, this prejudice should be charged to the State, not to the Defendant."

4. Defendant's loss of driving privileges "have critically hurt his ability to earn a livelihood."

Furthermore, defendant affirmed that he "would not have pled guilty if [he] would have known that [his] license would be revoked forever." Further, defendant affirmed that the loss of "driving privileges have critically hurt [his] ability to earn a livelihood." Defendant also asserts that he has "recovered from alcoholism."

Relevant Law

Section 510 of the Vehicle and Traffic Law affords the Commissioner the discretion to reissue a license that has been revoked. 15 NYCRR 136.1 (a) identifies the intent of the Commissioner's rules as, inter alia, "keeping with his responsibility to provide meaningful safeguards for the general public who are users of the highways" and to establish "criteria to identify individual problem drivers, the application of which shall result in a presumption, in certain cases, that the involved driver would present a potential danger to himself or other users of the highway if allowed to be licensed or relicensed."

The Appellate Division, Second Department addressed the changes to 15 NYCRR part 136 in Matter of Argudo v New York State Dept. of Motor Vehs. (149 AD3d 830 [2017]). In Argudo, petitioner-plaintiff Hugo Argudo had three alcohol related offenses, and had accumulated 27 points on his driving record during the look back period. Argudo was denied relicensing under the 2012 amendments, and a DMV Appeals Board subsequently upheld the denial (Matter of Argudo v New York State Dept. of Motor Vehs., 149 AD3d 830, 831 [2017]).{**77 Misc 3d at 1095}

Hugo Argudo sought relief, which was ultimately denied, via a hybrid CPLR article 78 proceeding/declaratory judgment action in the Nassau County Supreme Court, arguing, inter alia, that in denying relicensing, the "Department of Motor Vehicles and Commissioner of Motor Vehicles (DMV) acted unconstitutionally, arbitrarily and capriciously in . . . denying his application" (Argudo v New York State Dept. of Motor Vehs., 2014 NY Slip Op 32357[U], *1 [Sup Ct, Nassau County 2014]).

On appeal, the Appellate Division, Second Department, held that the Department of Motor Vehicles did not usurp the legislature's authority by enacting the emergency regulations; the Department of Motor Vehicles had the statutory authority to enact the emergency regulations; the denial of defendant's application did not violate the Ex Post Facto Clause of the United States Constitution; and denial of defendant's application was neither arbitrary nor capricious (Matter of Argudo v New York State Dept. of Motor Vehs., 149 AD3d 830, 832 [2017]).

The Court of Appeals settled challenges to 15 NYCRR part 136 in Matter of Acevedo [*4]v New York State Dept. of Motor Vehs. (29 NY3d 202 [2017]). In Acevedo, the Court of Appeals considered appeals by three appellants with multiple convictions for an alcohol related driving offense, "the third for petitioners Kevin B. Acevedo and Caralyn A. Matsen, and the sixth for petitioner Michael W. Carney" (Matter of Acevedo v New York State Dept. of Motor Vehs., 29 NY3d 202, 212 [2017]).

The Court of Appeals, in Matter of Acevedo v New York State Dept. of Motor Vehs. (29 NY3d 202 [2017]), held that the regulations were not inconsistent with a recidivist drunk driver's statutory rights regarding relicensing; the regulations did not contravene the DMV Commissioner's statutory mandate to exercise discretion on a case by case basis; the regulations did not encroach on the legislature's fundamental policy-making responsibility, in violation of constitutional separation of powers; the regulations were not irrational with respect to treatment of prior offenses; the definition of "alcohol- or drug-related driving conviction or incident" was not irrationally underinclusive; and the regulations were civil in nature and therefore were not subject to the Ex Post Facto Clause (Matter of Acevedo v New York State Dept. of Motor Vehs., 29 NY3d 202, 228 [2017]).

Coram Nobis

The legislature has codified coram nobis relief in article 440 of the Criminal Procedure Law. CPL 440.10 (1) provides a mechanism{**77 Misc 3d at 1096} for 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 several enumerated circumstances (CPL 440.10 [1] [a]-[k]). Some cases, however, may not fit within the enumerated circumstances of CPL 440.10 (1) (a)-(k). Under these circumstances, an application to set aside a judgment of conviction may be made by relying upon the common-law writ of coram nobis (People v Bachert, 69 NY2d 593 [1987]).

The legislature did not eliminate the common-law writ of coram nobis with the enactment of section 440.10 of the Criminal Procedure Law.

"In its modern context a motion for a writ presupposes a violation of the defendant's constitutional rights not appearing on the record, no negligence which could be attributed to the defendant for failure to have brought the alleged error to the attention of the court at the time of the trial, and further, that the current proceeding is not a substitute for a new trial, appeal or other statutory remedy (Frank, Coram Nobis, ¶ 3.01, at 23; 18 Am Jur 2d, Coram Nobis, § 12, at 632)" (People v Bachert, 69 NY2d 593, 598 [1987] [internal quotation marks omitted]).

The Court of Appeals has expanded coram nobis in scope when necessary to "afford [a] defendant a remedy . . . [when] no other avenue of judicial relief appeared available" (People v Hairston, 10 NY2d 92, 93-94 [1961]).

Case Law

In support of his motion, defendant refers to the decisions of eight courts that have ruled on the impact of 15 NYCRR part 136 to specific individuals with lifetime revocations:

People v Sora (2021 WL 6805865, 2021 NY Misc LEXIS 3857 [Greene County Ct, July 9, 2021, No. 20-134]). Reversed the denial of coram nobis application in the Catskill Town Justice Court and dismissed a 1989 conviction of Vehicle and Traffic Law § 1110 (a) in the interests of justice.

People v Velte (61 Misc 3d 331, 332 [Poughkeepsie City Ct 2018]). Defendant did not knowingly, intelligently, and voluntarily plead guilty to speeding because he could not have been aware that his plea would result in the permanent revocation of his driver's license 14 years later as a result of new DMV regulations imposed after the plea that would have a grave{**77 Misc 3d at 1097} impact upon defendant's ability to maintain a living or earn wages for the remainder of his working years.

People v Lynch (2020 NY Misc LEXIS 10270 [Patchogue Just Ct, Nov. 30, 2020, No. A59347094]). Defendant's 1999 plea to Vehicle and Traffic Law § 1163 (b) vacated as it was not made with a full understanding of the consequences of his action.

People v Daly (2020 NY Misc LEXIS 18164 [Clarkstown Just Ct, Nov. 19, 2020, No. LA963473]). Vacated defendant's 1999 conviction of Vehicle and Traffic Law § 1180 (d) as the plea could not have been knowingly, intelligently, and voluntarily entered into.

People v Luther (48 Misc 3d 699, 700 [Monroe County Ct 2014]). East Rochester Town Justice Court properly granted defendant's motion to vacate his DWI conviction because he might not have pleaded guilty to that charge had he known that 15 NYCRR 136.5 (b) (3) would be amended so as to render him ineligible to reapply for his driver's license for at least five years after expiration of the six-month revocation, and not allowing him to withdraw his plea under the circumstances would be an affront to the notion of due process.

People v Olecski (57 Misc 3d 698 [Crim Ct, NY County 2017]). Defendant, who pleaded guilty to operating a vehicle while ability impaired, was entitled to relief under CPL 440.10 (1) (h) based on ineffective assistance of counsel because she received incorrect advice from counsel about the effect of a plea deal on her license and she demonstrated that she would not have pleaded guilty if not for the advice she received.

People v Avital (64 Misc 3d 483 [East Fishkill Just Ct 2019]). Motion to vacate 2004 conviction of a speeding violation denied. Defendant's entire driving history brought him within the purview of the new regulations. Thus, the court declined to intrude on the Commissioner's province by vacating guilty pleas knowingly and voluntarily entered into.

People v Gallagher (70 Misc 3d 1210[A], 2020 NY Slip Op 51599[U] [Rye City Ct 2020]). Court denied defendant's motion to vacate 2001 speeding conviction, concluding, inter alia, it would be invalidating the regulations as applied to the defendant.

This court notes that the trial courts in both Avital and Gallagher denied the respective motions to vacate defendant's convictions. In Avital, defendant had "an extensive history of driving offenses, including alcohol-related convictions in 2007,{**77 Misc 3d at 1098} 2008, and 2013, as well as more than 21 points from violations" (People v Avital, 64 Misc 3d at 484). Similarly, in Gallagher, defendant had three DWI convictions and 20 points from five convictions within the relevant look back period (People v Gallagher, 2020 NY Slip Op 51599[U]).

Other courts have refused to vacate judgments of convictions for various reasons. In People v Boyles (71 Misc 3d 1231[A], 2021 NY Slip Op 50538[U] [Pleasant Valley Just Ct 2021]), the Town of Pleasant Valley Justice Court dismissed [*6]an application to vacate a 2003 conviction for driving while ability impaired. Defendant's coram nobis application claimed ineffective assistance of counsel, arguing counsel did not advise him that a conviction would lead to a lifetime bar to relicensing. Thus, the plea was not entered into knowingly or intelligently. The court denied the relief, asserting that the ineffective assistance of counsel claim should have been raised in a CPL 440.10 motion, which was now time-barred. Although not ruling on the claim of ineffective assistance of counsel, the court noted it would be "difficult to comprehend how counsel in 2003 could have advised the Defendant that his license could potentially be subject to a lifetime revocation under New York State Department of Motor Vehicles regulations that would be adopted nine years later." (2021 NY Slip Op 50538[U], *2.) The court also stated,

"[g]ranting the Defendant's application to vacate this conviction, and in essence invalidating the regulation as applied to this Defendant, without the Commissioner of the Department of Motor Vehicles being given an opportunity to be heard, is not something this Court will entertain. Moreover, it appears Defendant's grievance is aimed more directly at the 2012 regulation than at the performance of his trial counsel in 2003" (People v Boyles, 2021 NY Slip Op 50538[U], *2).

In People v Wheaton (49 Misc 3d 378, 379 [2015]), the trial court (Seneca County Ct) denied defendant's motion to vacate a 2004 class E felony conviction of driving while intoxicated. In Wheaton, the court rejected the finding by the Luther court, stating that to "hold that the failure to advise the defendant of a consequence then not in existence somehow renders the judgment of conviction to have been obtained in violation of due process or any other constitutional right defies both logic and common sense" (People v Wheaton, 49 Misc 3d 378, 379 [2015]). Like Boyles, the Wheaton court also noted that the "defendant's {**77 Misc 3d at 1099}grievance lies with the enactment and enforcement of the new regulation, not the manner of his conviction" (id.). The court in Wheaton went on to hold:

"In any event, '[t]he court "has no obligation to explain to defendants who plead guilty the possibility that collateral consequences may attach to their criminal conviction" (People v Catu, 4 NY3d 242, 244 [2005]; see generally People v Jones, 118 AD3d 1360, 1361 [2014]). The Court of Appeals has expressly stated that the "loss of a driver's license" is a collateral consequence of a conviction (People v Ford, 86 NY2d 397, 403 [1995]), and we have accordingly held that a "court's failure to disclose that consequence during the plea colloquy does not warrant vacatur of the plea" (People v Gerald, 103 AD3d 1249, 1250 [2013]).' (People v Trathen, 121 AD3d 1594, 1595 [4th Dept 2014].)" (People v Wheaton, 49 Misc 3d 378, 379 [2015].)

The court in People v Capraro (51 Misc 3d 1212[A], 2016 NY Slip Op 50633[U] [Mount Vernon City Ct 2016]) denied a petition to vacate a 1992 plea of guilty to a speeding violation. Citing Wheaton, the court held it "had no duty to inform the defendant that future DMV regulations could possibly impact his driving privileges." (People v Capraro, 2016 NY Slip Op 50633[U], *2.)

The court in People v Olecski (57 Misc 3d 698 [Crim Ct, NY County 2017]), cited by the defendant in support of his application, held that the court was not required to inform defendant about the five-year revocation of her license prior to accepting the plea because it was a collateral consequence and not a direct consequence of her actions. (People v Olecski, 57 Misc 3d 698 [2017].)

Further, in People v Newell (76 Misc 3d 1062 [New Scotland Just Ct 2022]), decided September 15, 2022, the court rejected defendant's coram nobis request for relief to vacate 1992 convictions (by guilty pleas) to driving while ability impaired by alcohol and improper passing. The court held, inter alia, that it was under no duty to inform the defendant of the collateral consequences to his guilty pleas. (People v Newell, 76 Misc 3d 1062 [2022].)

Conclusions of Law

The fundamental question before this court is did the defendant knowingly and intelligently enter into his 2006 guilty{**77 Misc 3d at 1100} plea? Although not specifically presented as such in defendant's application, it is the core of defendant's motion (e.g. defendant "did not understand that his plea of guilty would cause a lifetime revocation").

The Vehicle and Traffic Law mandates that before accepting a plea, a local criminal court must inform a defendant:

"A plea of guilty to this charge is equivalent to a conviction after trial. If you are convicted, not only will you be liable to a penalty, but in addition your license to drive a motor vehicle or motor cycle, and your certificate of registration, if any, are subject to suspension and revocation as prescribed by law.

"The giving of the foregoing instructions by means of a statement printed in a noticeably distinct manner and in bold type in a size equal to at least twelve point type, upon a summons or ticket issued to a person charged with any such offense shall constitute compliance with the requirements of this section" (Vehicle and Traffic Law § 1807 [1]).

Prior to accepting a plea, the court is only required to inform the defendant of the direct consequences of the plea and is not obligated to inform the defendant of the collateral consequences of the plea (People v Tinort, 5 Misc 3d 238, 239 [Sup Ct, NY County 2004]; People v Wheaton, 49 Misc 3d 378, 379 [2015]).

Defendant mailed in his plea to the court, and there is nothing on the record to suggest that the uniform traffic ticket issued to the defendant failed to conform with the language specified in section 1807 of the Vehicle and Traffic Law. The court also finds that the plea was entered into both knowingly and intelligently in 2006. Defendant, through motion papers, acknowledges in the affidavit of facts in support of motion that he understood "the ticket carried 4 points" and that his license to operate a motor vehicle would not be suspended "until he reached 11 points."

This court disagrees with the conclusions reached in Lynch, Luther, Daly and Velte, and therefore holds that it was not required to inform the defendant of any and all possible collateral consequences of his guilty plea, let alone those collateral consequences imposed by a rule which was not enacted until six years after the plea was voluntarily entered into and accepted by this court. In 2006, no one, including this court, could have been aware of any rules to potentially or eventually be enacted in 2012. To hold this court responsible for informing{**77 Misc 3d at 1101} the defendant in 2006 of the collateral consequences of a rule adopted in 2012, as aptly stated in Wheaton, "defies both logic and common sense" (People v Wheaton, 49 Misc 3d 378, 379 [2015]; see also People v Olecski, 57 Misc 3d 698 [2017]; People v Capraro, 2016 NY Slip Op 50633[U]; People v Boyles, 2021 NY Slip Op 50538[U]; People v Newell, 76 Misc 3d 1062).

Defendant was thus fully aware of the then current and potential consequences of a guilty plea to the offense of speeding at the time it was entered. The implementation of rules promulgated in 2012 does not retroactively invalidate defendant's plea entered into in 2006. Defendant's counsel, in his reply affirmation in support of motion, argues that the People, in their affirmation in opposition, failed to address that the defendant understood that the "points would fall off after 18 months." The court has considered this aspect of the defendant's motion and concludes that, as the current ineligibility for relicensing is the aggregate number of points over a 25-year period, combined with multiple convictions for an alcohol related driving offense, that it is not grounds to vacate the judgment in 2006.

Furthermore, this court's conclusion is supported by two recent cases decided by the Appellate Division, Second Department. In People v DiTore (209 AD3d 665, 667 [2022]), decided October 5, 2022, the Appellate Division, Second Department, reversed a lower court (Sup Ct, Nassau County) ruling which granted defendant's motion to vacate a December 2010 plea of guilty to various offenses related to operating a motor vehicle under the influence of alcohol. The Appellate Division, Second Department held that the Commissioner's "regulations that led to the denial of the defendant's application to restore his driver license did not exist at the time he pleaded guilty, and the defendant failed to identify any conduct that occurred during the plea proceedings that constituted a violation of his due process rights" (People v DiTore, 209 AD3d 665, 667 [2022]). DiTore also held that "the loss of a driver license is a collateral consequence of a plea of guilty and is not a consequence within the control of the court system (see People v Peque, 22 NY3d 168, 185 [2013])" (People v DiTore, 209 AD3d 665, 667 [2022]).

In People v Maggio (210 AD3d 798, 799 [2022]), the Appellate Division, Second Department, reversed a lower court ruling which granted a defense motion to vacate an April 2010 conviction for driving under the influence of alcohol, holding that the{**77 Misc 3d at 1102}

"Supreme Court[, Suffolk County] erred in granting the defendant's motion to vacate the judgment of conviction on the ground that his plea of guilty was not entered knowingly, voluntarily, and intelligently. The subject regulation that led to the denial of the defendant's application for relicensing did not exist at the time he entered his plea of guilty, and it would have been impossible for the court to inform the defendant of consequences flowing therefrom."

Defendant also claims that the unavailability of original records is a prejudice that should be charged to the People. Said argument is without merit. In any respect, vacating a guilty plea 16 years after it had been entered, and restoring the case to the calendar, is patently a prejudice in favor of the defendant and adverse to the People's ability to re-prosecute this matter. This court concurs with the reasoning in Gallagher (2020 NY Slip Op 51599[U]), and concludes that 16 years later, the issuing police officer may likely be retired, and no longer working or employed as a police officer. Even assuming that the officer was still employed and available to give testimony in 2022, the memory and recollection of a traffic [*7]offense observed in 2006 will certainly have faded. Thus, even if this court were to vacate the guilty plea and restore the matter to the calendar, prosecution of the offense after more than a decade and a half would be difficult, if not impossible, and results in a clear prejudice which ultimately and completely benefits the defendant.

The court next considers the defendant's claim that the loss of driving privileges "have critically hurt his ability to earn a livelihood." Financial hardship from the loss of a driver's license or operating privileges is not a "countervailing factor." (People v Gallagher, 2020 NY Slip Op 51599[U], *7; People v Capraro, 2016 NY Slip Op 50633[U].) Further, financial hardship and burden is not limited to this defendant. Rather, it is likely a factor in similar cases of lifetime revocation. (People v Newell, 76 Misc 3d 1062.) While this court is fully cognizant of the limitations experienced by defendant due to the lack of a driver's license, it does not find financial hardship to be a compelling, overarching reason to vacate the 2006 plea and is unwilling to vacate the judgment of conviction based upon this claim.

The court acknowledges defendant's assertion that he has "recovered from alcoholism." The struggle faced by the defendant {**77 Misc 3d at 1103}with alcohol addiction and recovery is not lost on this court. Defendant is to be commended for his efforts to maintain sobriety, but current sobriety does not warrant vacating the 2006 judgment.

This court now addresses the defendant's claim that his combination of alcohol related convictions and accumulated points subject him to what he characterizes as a "draconian lifetime consequence." The characterization of the effect of 15 NYCRR part 136 on defendant's inability to obtain relicensing as "draconian" is unpersuasive and trivializes the Commissioner's duty and responsibility to promulgate appropriate driving and licensing rules. In Acevedo, the Court of Appeals held:

"But the ultimate aim of the Regulations—the legislative policy goal—is both well-established and widely shared: protecting the public from the dangers of recidivist drunk driving. The legislature, not DMV, made a value judgment between competing ends, concluding that public safety may outweigh the licensing interests of recidivist drunk driving offenders. The legislature has also expressed a clear intention to delegate broad authority to DMV to decide post-revocation relicensing applications, leaving all reissuance determinations subject to the 'discretion of the commissioner' (Vehicle and Traffic Law § 1193 [2] [c])" (Matter of Acevedo v New York State Dept. of Motor Vehs., 29 NY3d 202, 223 [2017]).

To be deemed "draconian," the rules promulgated by the Commissioner of Motor Vehicles would need to be overly harsh and severe. The rules are neither and serve a public safety interest and only directly impact those dangerous drivers whom the Commissioner seeks to protect the general driving public from. Here, defendant has three alcohol related convictions and 35 accumulated lifetime points. Additionally, he has multiple non-point convictions, including three convictions of operating without a license, and three convictions of misdemeanor aggravated unlicensed operation of a motor vehicle in the third degree. Defendant's 2006 conviction in this court for speeding is not the cause of his lifetime ineligibility for relicensing. It is his cumulative history of convictions for alcohol related offenses, and moving violations with points assessed, that has led to his ineligibility under the rules promulgated by the Commissioner of Motor Vehicles.

The suspension or revocation of one's driving privilege is a civil sanction (Matter of Brady v Department of Motor Vehs.,{**77 Misc 3d at 1104}278 AD2d 233 [2d Dept 2000], affd 98 NY2d 625 [2002]) to both punish the errant motorist and to protect the public (Matter of Barnes v Tofany, 27 NY2d 74, 78 [1970]). Once revoked, a driver's license may be restored only at the direction of the Commissioner of Motor Vehicles (Vehicle and Traffic Law § 510 [5]; see also People v Giacopelli, 171 Misc 2d 844 [Clarkstown Just Ct 1997]).

In Gallagher, the court summarized case law pertaining to driving as a privilege. Driving is commonly held to be a privilege, not a right. (People v Burnet, 24 Misc 3d 292, 302 [Sup Ct, Bronx County 2009].) Since issuance of a driver's license is a privilege, granted by the State and not a right, the State can condition receipt of it, or absolutely revoke it. (Matter of Anderson v Macduff, 208 Misc 271 [Sup Ct, Montgomery County 1955].) Nevertheless, a license to operate an automobile is of tremendous value to the individual and may not be taken away except by due process. (Matter of Hickey v Kelly, 9 AD2d 386, 389-390 [4th Dept 1959], affd 8 NY2d 715 [1960]; People v Gallagher, 2020 NY Slip Op 51599[U].)

Further, in Acevedo, the Court of Appeals wrote:

"In formulating the Regulations, DMV 'deliberated extensively about how to restrict the driving privileges of persons who are eligible for relicensure but who might continue to present highway safety concerns' (NY Reg, Mar. 13, 2013 at 46). Among other things, DMV considered its own collection of empirical data, including statistics pertaining to drunk driving offenders and other high-risk relicensing applicants (Vehicle and Traffic Law § 216-a). The inclusion of the 'serious driving offense' provision in the Regulations amounts to a line-drawing determination by the Commissioner regarding the degree of danger posed by various traffic offenses that do not involve drunk driving—a value judgment warranting substantial deference. We decline to disturb the Commissioner's informed and reasonable determination, made pursuant to an express delegation of authority and falling well within DMV's unique area of expertise (see Matter of Consolation Nursing Home, 85 NY2d at 331)." (Matter of Acevedo v New York State Dept. of Motor Vehs., 29 NY3d 202, 227-228 [2017].)

In Gallagher, the court wrote the "[d]efendant appears to be exactly the type of problem driver the Regulations were{**77 Misc 3d at 1105} promulgated to address" and "[t]he Court will not intrude upon the province of the Commissioner of the Department of Motor Vehicles by vacating guilty pleas." (People v Gallagher, 2020 NY Slip Op 51599[U], *8.) Likewise, in Newell, the court refused to "interfere with the prerogatives of the DMV by vacating guilty pleas that appear to have been knowingly and voluntarily entered." (People v Newell, 76 Misc 3d at 1069.) Similarly, the court in Boyles concluded that vacating the defendant's plea would be "invalidating the regulation as applied to [the] Defendant, without the Commissioner of the Department of Motor Vehicles being given an opportunity to be heard." (People v Boyles, 2021 NY Slip Op 50538[U], *2.)

This court concurs with the conclusions in Gallagher, Newell, and Boyles. Indeed, vacating guilty pleas, such as the one presently before the court, which have been entered into [*9]knowingly, intelligently and voluntarily for the sole purpose of avoiding the collateral consequences of the Commissioner's regulations would act to invalidate the rules and regulations promulgated by the Commissioner. It would create a proverbial loophole by which problem drivers—the exact type of drivers that the rules were implemented to address—could abate the Commissioner's rules by eliminating convictions to bring them under the requisite thresholds set forth in those rules. Consequently, it renders the Commissioner's rules and authority moot. This court will not invalidate the Commissioner's authority and rules, nor render them moot.

Additionally, the authority to restore a driving license after revocation is a power under the exclusive control of the Commissioner of Motor Vehicles (Vehicle and Traffic Law § 510 [5]; see also People v Giacopelli, 171 Misc 2d 844 [Clarkstown Just Ct 1997]). In Maggio, the Appellate Division, Second Department reaffirmed this authority: "the Court of Appeals observed that the Vehicle and Traffic Law 'contemplates that the Commissioner [of the DMV] will have exclusive authority over post-revocation relicensing, and that those relicensing determinations will be discretionary' (Matter of{**77 Misc 3d at 1106}Acevedo v New York State Dept. of Motor Vehs., 29 NY3d 202, 220 [2017])" (People v Maggio, 210 AD3d at 800). This court will not usurp the legislatively granted power of the Commissioner.

Finally, the Court of Appeals in Acevedo declined "to disturb the Commissioner's informed and reasonable determination, made pursuant to an express delegation of authority and falling well within DMV's unique area of expertise." (Matter of Acevedo v New York State Dept. of Motor Vehs., 29 NY3d at 227-228.) If this court were to grant the relief presently sought it would do to the Commissioner's rules what the Court of Appeals has refused to do.

Based on the foregoing, it is hereby ordered that the defendant's motion to vacate his 2006 conviction is denied in all respects.