Justice Court of the Town of New Scotland, Albany County, December 18, 2023

Nave Law Firm, Syracuse (Justin M. Lange of counsel), for defendant.

P. David Soares, District Attorney, Albany (Kara Czapski-Orlop of counsel), for the People.

[*2]Defendant Michael Mavroudis, who was deemed permanently ineligible for relicensure by the Department of Motor Vehicles (DMV), has filed a coram nobis application seeking to vacate an October 16, 2000 conviction in this court^[FN1] rendered upon his guilty plea to a charge of disobeying a traffic control device in violation of New York Vehicle and Traffic Law § 1110 (a). Defendant contends that his conviction must be vacated because he was never advised by the court, or by a preprinted warning on the uniform traffic ticket, of his right to counsel, or of his right to an adjournment to obtain counsel. Defendant also maintains that his plea to the traffic infraction was not knowing and voluntary because it was entered prior to the 2012 DMV regulations^[FN2] that subjected him to a lifetime driver's license revocation—a consequence that he could not have known at the time his guilty plea was entered in this court. The People oppose the relief requested in this coram nobis application.

The primary issue raised here is whether coram nobis relief should be granted vacating defendant's June 2000 guilty plea in this court due to his claim that the court failed to advise him of his right to counsel or of his right to an adjournment to{**82 Misc 3d at 430} obtain counsel. Although he does not cite the applicable statute, defendant urges that the court failed to comply with the arraignment procedures set forth under CPL 170.10 (3) (a) (court must advise defendant of his right to the aid of counsel and his right to an adjournment for the purpose of retaining counsel).^[FN3]

As noted by this court in People v Newell (76 Misc 3d 1062 [New Scotland Just Ct 2022]):

"[i]n 2012, the DMV amended its regulations to provide for a lifetime review of a person's driving record when, among other things, a person with multiple alcohol- or drug-related driving convictions applies for relicensing (15 NYCRR 136.5 [a]). The purpose of the regulations is to take disciplinary action for the protection of the applicant and the public (15 NYCRR 136.1 [a]). A person with five or more alcohol- or drug-related convictions is permanently barred from obtaining a driver's license (15 NYCRR 136.5 [b] [1]). Of relevance here, a person with three or more alcohol- or drug-related convictions may reapply for driving privileges five years after expiration of the statutory revocation period (15 NYCRR 136.5 [b] [3] [i], [ii]). However, a person with three or more alcohol- or drug-related driving convictions who also has one or more 'serious driving offense' may never be relicensed (15 NYCRR 136.5 [b] [2]). The definition of '[s]erious driving offense' includes the situation where the driver has amassed 20 or more points from any traffic violations (15 NYCRR 136.5 [a] [2] [iv])" (id. at 1063-1064).

Applying the DMV regulations to the instant case, defendant's prior alcohol related convictions do not bar relicensure because he has four (not five or more). However, a review of his lifetime driving record and the 25-year look back period shows that he had more than 30 points on his license when he applied for relicensure in 2012. Therefore, he also meets the [*3]DMV definition of "serious driving offense," having amassed 38 total points from any traffic violation (15 NYCRR 136.5 [a] [2] [iv]),{**82 Misc 3d at 431} which permanently denies him relicensure (15 NYCRR 136.5 [b] [2]).

Before addressing the primary issue pertaining to defendant's right to counsel, the court will turn to the issue raised in People v Newell and raised in this case once again—namely should a driver who pleaded guilty to a traffic infraction prior to the 2012 DMV regulations imposing the lifetime revocation of his driving privileges be permitted to vacate the plea on the ground that said plea was not knowing and voluntary because he could not have known that the DMV would later impose the lifetime revocation provisions. As in Newell, the court rejects this argument (76 Misc 3d at 1065-1067). To hold otherwise would mean that many years ago this court would have been required to advise the defendant that a collateral consequence of his guilty plea could entail a future negative impact on his driving privileges. Some collateral consequences of a plea must be brought to the attention of the defendant prior to a plea of guilty (People v Rucker, 67 AD3d 1126 [3d Dept 2009] [defendant must be advised of postrelease supervision because of a guilty plea]; People v Peque, 22 NY3d 168, 194 [2013] [defendant must be advised of the immigration consequences of his guilty plea]). However, the subject regulations that led to the denial of his driving privileges did not exist at the time of his plea and "it would have been impossible for the court to [advise him] of consequences flowing therefrom" (People v Maggio, 210 AD3d 798, 799-800 [2d Dept 2022]). Simply put, defendant's unawareness that, as a consequence of his entering a guilty plea, his driver's license might never be reinstated does not prevent his plea from being knowing and voluntary, in part, because the denial of relicensing does not result from a single conviction, but from the defendant's entire driving history (People v Maggio, 210 AD3d at 801-802; People v Beltran, 77 Misc 3d 1091 [Deerpark Just Ct 2022]; People v Avital, 64 Misc 3d 483 [East Fishkill Just Ct 2019]; People v Wheaton, 49 Misc 3d 378 [Seneca County Ct 2015]).

Next, the court will take up the defendant's principal argument—his October 2000 conviction in this court should be{**82 Misc 3d at 432} vacated because at the time he pleaded guilty to the traffic infraction either by mail and/or by appearing in person he was not advised by the court or by a preprinted warning on the ticket of his right to counsel, or his right to an adjournment to obtain counsel (petition for writ of coram nobis ¶ 2). As a threshold matter, defendant does not request a hearing, but the court must first decide whether one is necessary.

The New York Criminal Procedure Law codifies the requirements for coram nobis relief under CPL 440.10. Notably, "where a postjudgment motion is made under CPL 440.10, a hearing to develop additional background facts is [not] invariably necessary" (People v Satterfield, 66 NY2d 796, 799 [1985]). Here, defendant makes the vague assertion that he either pleaded guilty by mail or that he appeared in person to answer the charge and entered a plea in court. If the defendant had appeared in court, a hearing would not shed light on what transpired in court in October 2000. Town and village courts were required to mechanically record [*4]proceedings beginning on June 16, 2008.^[FN4] As such, there is no recording of the June and/or October 2000 court proceedings in question. If the defendant pleaded guilty by mail, then he waived his right to an arraignment where he would have been advised of his right to retain counsel (see Peter Preiser, Prac Commentaries, McKinney's Cons Laws of NY, CPL 170.10). Therefore, the court sees no need for a hearing to develop additional background facts and it will decide the case based on the written submissions.

Turning to the facial sufficiency of the application, to overcome the presumption of validity that attaches to judgments of conviction, the defendant must allege a ground constituting a legal basis for relief and assert sworn allegations of fact "substantiating or tending to substantiate all the essential facts" required (CPL 440.30 [1] [a]; [4] [b]). Conclusory allegations are insufficient, justifying summary denial of the application (People v Brown, 56 NY2d 242, 247 [1982]). Defendant claims that he either pleaded by mail or came to court, but in either event he was not advised on the record of his right to retain an attorney or his right to an adjournment to obtain counsel. Here, the defendant bears the burden of proof, yet he does not plainly assert that he ever appeared in court (since he acknowledges he may have pleaded guilty by mail){**82 Misc 3d at 433} and he has failed to come forward with any evidence beyond his self-serving allegations to substantiate his claim (People v Spradlin, 192 AD3d 1270 [3d Dept 2021]). This is critical because the arraignment procedures set forth under CPL 170.10 (3) (a)-(c) are tied to the situation where the defendant "appears upon such arraignment without counsel" (CPL 170.10 [3] [emphasis added]).

Further, his claim that he may not have been advised of his rights in court or on the charging instrument is obviously record based and should have been pursued on a direct appeal 23 years ago—his post-conviction motion is being improperly used as a substitute for a direct appeal (People v Cuadrado, 9 NY3d 362 [2007]; People v Berezansky, 229 AD2d 768 [3d Dept 1996]). In this context, defendant was charged in a uniform traffic ticket with the infraction of failure to obey a traffic control device. The court was required to retain his paper file for a period of six years under the applicable record retention rules and then destroy it—therefore, the court does not have the charging instrument or a record of the proceedings to consult to review his claims.^[FN5]

For these reasons, summary denial of the application for coram nobis relief is warranted.

Even if the application for coram nobis relief were to be deemed sufficient on its face defendant would not be entitled to vacatur of his traffic infraction conviction in this court. Addressing the merits, the court must examine whether the defendant satisfies any of the statutory grounds for coram nobis relief. The applicable statute sets out specific grounds for vacating a guilty plea (CPL 440.10 [1] [a]-[k]). Defendant does not allege in his written submission the specific ground(s) he is relying upon for the relief requested. A review of the grounds set forth under CPL 440.10 (1) (a)-(k) indicates that the ground arguably relevant here [*5]is that the conviction was obtained in violation of his constitutional rights (CPL 440.10 [1] [h]). Moreover, the court may, in reviewing defendant's attempt to set aside this court's October 2000 traffic infraction conviction, treat the application more broadly as one relying on the{**82 Misc 3d at 434} common-law writ of coram nobis (People v Bachert, 69 NY2d 593 [1987]).

The distinction between a "crime" and an offense is defined by statute. The New York Penal Law defines a "crime" as a "misdemeanor or felony" which are in turn categorized by the amount of prison time that may be imposed. (See Penal Law § 10 [4]-[6] [misdemeanor is "an offense, other than a 'traffic infraction' " for which a sentence "in excess of fifteen days . . . but . . . (not) in excess of one year" may be imposed, and a felony is "an offense (carrying) . . . a term of imprisonment in excess of one year"].) In contrast, lesser offenses like violations or traffic infractions are categorized as noncriminal "petty offenses." (CPL 1.20 [39].) Both traffic infractions and violations are designated as "petty offenses" punishable by up to 15 days in jail (People v Perkins, 37 Misc 3d 696 [Crim Ct, Kings County 2012]). Of relevance here, a conviction for the traffic infraction of failure to obey a traffic device results in a fine or a jail term of up to 15 days. However, because a traffic infraction is not a crime, a prosecution for a traffic infraction is a civil action, not a criminal action. (See General Construction Law § 18-a [a "criminal action" is an action prosecuted by the People "against a party charged with a crime"]; General Construction Law § 16-a [a "civil action" is any action other than an action prosecuted by the People "against a party charged with a crime"].)

In People v Letterio (16 NY2d 307, 312 [1965]), the Court of Appeals held that a motorist has no right to counsel when charged with a traffic infraction and need not be apprised of the right to counsel.^[FN6] The Court held that the Sixth Amendment right to counsel does not attach to a petty offense, like a traffic infraction, being one of "certain minor transgressions which admit of summary disposition . . . [and] New York has long deemed traffic infractions as a form of misconduct distinguishable from more serious breaches of the law or crimes" (id. at 312). The Court reasoned that although a traffic infraction carries a penalty, it is not a criminal penalty, but rather is in the nature of a community sanction or civil penalty, even though in very rare cases a jail sentence is authorized and may be imposed (Letterio, 16 NY2d at 312-313). As such, the Court in Letterio concluded that traffic offenders are not entitled to{**82 Misc 3d at 435} "all the weight and the solemn constitutional [protections]" afforded those charged with a crime (id.).

Under Letterio, which is still controlling precedent, defendant was held to have no constitutional right to be advised of his right to retain counsel or his right to an adjournment to obtain counsel. On the other hand, New York statutory law confers these rights upon a defendant who appears at his arraignment on a traffic infraction. (CPL 170.10 [3]; People v Ross, 67 NY2d at 326 [constitutional right to counsel distinguishable from rights conferred under the Criminal Procedure Law].) However, a defendant who pleads guilty to a traffic infraction by mail waives arraignment by returning a plea of guilty on the uniform traffic ticket form and that form specifically states that he waives "the aid of counsel" (see 15 NYCRR 91.7 [Form of uniform traffic ticket]). There is no proof before this court, other than defendant's unsupported claim, that the uniform traffic ticket in this case lacked the required [*6]language or that the court at arraignment failed to advise him of his rights.

Defendant cites three cases in which motorists were convicted of one or more traffic infractions which authorized jail time and, on appeal, their convictions were reversed because the motorists were not advised in court of the right to retain counsel or of the right to an adjournment to obtain a lawyer (People v Mohabir, 46 Misc 3d 143[A], 2015 NY Slip Op 50186[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2015]; People v Braun, 45 Misc 3d 130[A], 2014 NY Slip Op 51582[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2014]; People v Rios, 9 Misc 3d 1 [App Term, 2d Dept, 9th & 10th Jud Dists 2005]). Here, we do not know from the record whether the defendant ever appeared in court or whether he waived his arraignment. The cited cases are also distinguishable from the instant case because they involved direct appeals from a judgment of conviction, after trial, not guilty pleas to the charge followed many years later by an application for coram nobis relief. The defendant in this case forfeited his ability to raise the issue of statutory compliance with CPL 170.10 when he neglected to file a direct appeal of his conviction in this court. To the extent that People v Rios may be read to suggest that the possibility of a 15-day jail sentence triggers a "right to counsel" of constitutional dimension in prosecutions for traffic infractions, that holding is rejected because it conflicts with the Court of Appeals decision in People v Letterio, which unequivocally{**82 Misc 3d at 436} rejected a right to counsel in traffic infraction cases even though many authorize sentences of up to 15 days in jail.^[FN7]

The regulatory scheme established by the DMV vests that agency with discretionary authority over post revocation licensing determinations (People v DiTore, 209 AD3d 665, 667 [2d Dept 2022]). Nonetheless, this court acknowledged in People v Newell that it has the discretion to use coram nobis to correct a plain injustice, but this discretion is guided by the following factors: (1) the totality of defendant's driving record (i.e., total points); (2) the nature of the conviction(s) he seeks to vacate; (3) the age of the convictions he seeks to vacate considered along with the time he drives relatively infraction free; and (4) other factors, such as a lack of legal representation at the time of the plea (76 Misc 3d at 1068; Fiandach, New York Driving While Intoxicated § 36.7 [3d ed 2023]). None of these factors is determinative, and the court should consider the totality of the circumstances that led to the permanent inability to obtain relicensure from the DMV.

As noted in Newell, the DMV regulations consider defendant's entire driving record and even in cases where, as here, he has four prior alcohol related convictions, he may be relicensed so long as he is otherwise eligible. Here, due to numerous other motor vehicle convictions (38 points in the look back period) defendant was found by the DMV to have committed a "serious offense" and thereby deemed permanently disqualified from driving in New York State.

Applying the factors outlined in Newell, a fair review of defendant's lifetime driving record shows that it is very poor, including four prior alcohol related convictions. He puts forth no evidence regarding completed treatment/evaluations for alcohol dependence. Further, defendant was also convicted of the felony of aggravated unlicensed operation of a motor vehicle in the first degree. Defendant was 27 years old and young at the time of his traffic conviction in this court. Yet, other than his age he offers no other compelling proof to support his request to vacate his October 2000 conviction in this court. Regarding the age of the convictions, unlike the defendant in People v Sora (2021 WL 6805865, 2021 NY Misc LEXIS 3857 [Greene County Ct, July 9, 2021, No. 20-134]), [*7]decided in 2021 and involving a 1989 non-alcohol related offense, defendant{**82 Misc 3d at 437} here has alcohol related offenses as recent as 2007. Finally, although defendant raises a claim regarding the failure of the court at arraignment to advise him of the right to retain counsel and the alleged absence on his uniform ticket of language pertaining to counsel, his claim is record based and rests solely on his self-serving and vague allegations. The coram nobis application is procedurally defective and devoid of record proof. Any claims regarding the right to counsel should have been raised on a direct appeal over two decades ago, not by an application for coram nobis relief without supporting evidence.

Based on the foregoing, it is hereby ordered that defendant's application is in all respects denied.