Suffolk County Traffic Prosecutor's Office (Justin W. Smiloff of counsel), for appellant. Toscani Law Firm, P.C., for respondent (no brief filed).

Appeal from an order of the District Court of Suffolk County, Suffolk County Traffic and Parking Violations Agency (Debra Urbano-Disalvo, J.H.O.), dated January 31, 2022. The order granted defendant's motion to vacate a judgment and guilty plea entered pursuant to Vehicle and Traffic Law § 1806-a upon defendant's failure to appear or timely answer a uniform traffic ticket and, upon such vacatur, to dismiss, in furtherance of justice, the simplified traffic information charging defendant with operating a motor vehicle without insurance. The appeal from the order dated January 31, 2022 brings up for review so much of an order of that court dated March 10, 2022 as, upon reargument, adhered to the prior determination (see CPLR 5517 [b]).

ORDERED that the appeal from the January 31, 2022 order is dismissed, as that order was superseded by the order dated March 10, 2022; and it is further,

ORDERED that the order dated March 10, 2022, insofar as reviewed, is modified by providing that the branch of defendant's motion seeking to dismiss the simplified traffic information charging defendant with operating a motor vehicle without insurance is denied and the matter is remitted to the District Court of Suffolk County, Suffolk County Traffic and Parking Violations Agency, for all further proceedings; as so modified, the order is affirmed, without costs.

In a uniform traffic ticket issued to defendant on July 10, 2019, defendant was charged with operating a motor vehicle without insurance (Vehicle and Traffic Law § 319 [1]). The [*2]ticket instructed defendant to answer "by mail before or in person [at the Suffolk County Traffic and Parking Violations Agency (SCTPVA)] on" September 10, 2019. It is undisputed that defendant failed to appear (in person) or answer the ticket. In correspondence dated December 15, 2020, allegedly sent by the SCTPVA to defendant, entitled "NOTICE OF DEFAULT CONVICTION," the SCTPVA notified defendant of the following (emphases added):

"[A fine in the amount of $1,497, plus an administrative fee and a surcharge] MUST BE PAID BEFORE: 02/16/2021 Time: 09:00AM

. . .

Due to your failure to appear and/or answer the above charge(s) and pursuant to NYS VTL 1806-a, a guilty plea has been entered on your behalf. You have 30 days from the date of this notice to email SuffolkTPVA@SuffolkCountyNY.gov to contest said conviction. A default application fee will apply. The above fine(s) have been imposed. You must pay the fine by the date indicated above."

Defendant failed to respond to this notice and, according to the People, a default judgment, "civil in nature," was entered on February 6, 2021 against defendant, purportedly pursuant to Vehicle and Traffic Law § 1806-a (1). Defendant, by his attorney, moved to vacate the default judgment pursuant to CPLR 5015 (a) and, upon such vacatur, to dismiss the simplified traffic information in furtherance of justice, which motion the People opposed. By order dated January 31, 2022, the court granted defendant's motion, vacated the default judgment, and dismissed the simplified traffic information.^[FN1] The People moved, pursuant to CPLR 2221 (d), for leave to reargue their opposition to defendant's motion and, upon reargument, to deny defendant's motion. Defendant opposed the motion and, in an order dated March 10, 2022, the court granted leave to reargue and adhered to its prior determination. The People appeal from the January 31, 2022 order, which appeal brings up for review so much of the order dated March 10, 2022 as, upon reargument, adhered to the prior determination (see CPLR 5517 [b]). The appeal from the January 31, 2022 order is dismissed as superseded (see Leung v Port Auth. of NY & N.J., 204 AD3d 654 [2022]).

Vehicle and Traffic Law § 1806 provides that, in addition to appearing personally on the return date set forth on a traffic ticket to enter a not guilty plea to a traffic infraction, a defendant may enter a not guilty plea by mailing, within 48 hours after receiving the traffic ticket, via registered or certified mail, return receipt requested or first class mail, "to the court of appropriate [*3]jurisdiction the ticket making the charge and a signed statement indicating such plea."^[FN2] Vehicle and Traffic Law § 1806-a (1) provides the following (emphases added):

"In the event a person charged with a traffic infraction does not answer within the time specified, the court having jurisdiction . . . may, in addition to any other action authorized by law, enter a plea of guilty on behalf of the defendant and render a default judgment of a fine determined by the court within the amount authorized by law. Any judgment entered pursuant to default shall be civil in nature, but shall be treated as a conviction for the purposes of this section. However, at least thirty days after the expiration of the original date prescribed for entering a plea and before a plea of guilty and a default judgment may be rendered, the traffic violations bureau or, if there be none, the clerk of the court, shall notify the defendant by certified mail: (a) of the violation charged; (b) of the impending plea of guilty and default judgment; (c) that such judgment will be filed with the county clerk of the county in which the operator or registrant is located, and (d) that a default or plea of guilty may be avoided by entering a plea or making an appearance within thirty days of the sending of such notice. Pleas entered within that period shall be in a manner prescribed in the notice. . . . When a person has entered a plea of not guilty and has demanded a hearing, no fine or penalty shall be imposed for any reason, prior to the holding of the hearing which shall be scheduled by the court of such city, village or town within thirty days of such demand."

We find that the SCTPVA was "not authorized" to enter a guilty plea on behalf of defendant and thereupon to enter a default judgment (People v Iverson, 37 NY3d 98, 101 [2021]) against defendant in this matter as the SCTPVA did not comply with the procedures set forth in Vehicle and Traffic Law § 1806-a (1) for the entry of a default judgment. Vehicle and Traffic Law § 1806-a (1) distinguishes between a failure to timely answer a traffic ticket, as is the case herein, and a default. That section mandates that, upon a defendant's failure to timely answer, but "before a plea of guilty and a default judgment may be rendered," the clerk of the court must send to the defendant a letter by certified mail notifying the defendant "that a default or plea of guilty may be avoided by entering a plea or making an appearance within thirty days of the sending of such notice." Consequently, it is a statutory requirement both that a defendant cannot be deemed in default and that a guilty plea and a default judgment cannot be entered until after the 30-day period provided for in the notice has expired. Here, however, in contravention of Vehicle and Traffic Law § 1806-a (1), the 30-day notice stated that a guilty plea had already been entered against defendant and that a fine in a specified amount had been imposed. Moreover, [*4]although Suffolk County Code § 818-78 (A) (5) authorizes the SCTPVA to impose a $50 "[a]dministrative fee for defaults," the propriety of which we do not pass upon, here, the SCTPVA's notice impermissibly required defendant to pay a "default application fee" before any default had occurred in order to afford defendant the opportunity to prevent the entry of a default judgment against him. In view of the foregoing, we find that, as the SCTPVA's 30-day notice failed to comply with Vehicle and Traffic Law § 1806-a (1), neither a guilty plea nor a default judgment should have been entered against defendant. Accordingly, the court properly granted the branch of defendant's motion seeking to vacate the default judgment and guilty plea.

However, we find that the court should have denied the branch of defendant's motion seeking, upon vacatur of the default judgment and guilty plea, to dismiss the simplified traffic information in furtherance of justice since the January 31, 2022 order did not indicate that the court considered any of the factors enumerated in CPL 170.40 (see People v Berrus, 1 NY3d 535, 536 [2003]).

Accordingly, the order dated March 10, 2022, insofar as reviewed, is modified by providing that the branch of defendant's motion seeking to dismiss the simplified traffic information charging defendant with operating a motor vehicle without insurance is denied and the matter is remitted to the District Court of Suffolk County, Suffolk County Traffic and Parking Violations Agency, for all further proceedings.

GARGUILO and DRISCOLL, JJ., concur.

EMERSON, J.P., taking no part.

ENTER:

Paul Kenny

Chief Clerk

Decision Date: September 26, 2024