People v Gallagher

[*1] People v Gallagher 2020 NY Slip Op 51599(U) Decided on December 16, 2020 City Court Of Rye, Westchester County Latwin, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 16, 2020
City Court of Rye, Westchester County

The People of the State of New York, Plaintiff,

against

Patrick Gallagher, Defendant.



LN0231033



People by Kristen K. Wilson, Corporation Counsel, Rye, NY

Defendant by George M. Groglio, Esq. Port Chester, NY
Joseph L. Latwin, J.

It is beyond cavil that drunk driving is a serious problem in the United States. It is a threat to everyone, regardless of age, gender, or class. As its name implies, drunk driving is the act of driving a vehicle after consuming enough alcohol to impair one's motor skills and mental capacity. The impairment to one's motor skills and mental capacity are just two of the reasons why drinking alcohol and driving is such a great problem. It also affects a driver's perception, reaction time, coordination, judgment, and general ability to pay attention to what is happening on the road. Failure to have command of any of these skills can result in a crash and/or the injury of others on the road, including other drivers and their passengers, bicyclists, and pedestrians. Not only are drunk drivers a threat to others on the road, but they are also a threat to themselves and to any passengers who may be in the vehicle with them. While driving drunk is an obvious danger to human life, it is also very costly in other ways. When an intoxicated individual gets behind the wheel of a car, they are potentially destructive to the environment and structures within a community as well.

The Center for Disease Control states in the Motor Vehicle Safety section of its website that there is a drunk-driving-related death every 51 minutes in the United States and 29 people die each day in automobile accidents that involve a drunk driver. Thirty-five percent of people killed in auto accidents are alcohol-impaired, according to the Insurance Information Institute. The estimated annual cost of crashes involving alcohol impairment is $37 billion.

According to NHTSA, more than a quarter (25%) of all traffic-related deaths are the direct result of alcohol impairment. Around 800 people per day are injured in a drunk driving crash and 30 people die. In 2017, 32% of people who died in alcohol-related car crashes were passengers.

In 2018, there were 307 alcohol impaired fatalities in New York and the fatality rate was 1.6 per 100,000 people.

In 2012, the Commissioner of the Department of Motor Vehicles promulgated new rules [*2]and regulations relating to the licensure of applicants with multiple drug or alcohol driving convictions. 15 N.Y.C.R.R. Part 136. The Commissioner claimed his authority to adopt the regulations under Vehicle and Traffic Law, §§ 215, 501[2][c], 510[5], [6], 1192[10][a], [d], 1193[2][b][12], [c][1], 1194[2][d][1], 1198). The stated intent of the regulations was

Section 510 of the Vehicle and Traffic Law provides that a license may be issued after revocation in the discretion of the commissioner. In exercising such discretion and in keeping with his responsibility to provide meaningful safeguards for the general public who are users of the highways, it is the purpose of the commissioner to utilize departmental driver improvement programs in order to rehabilitate problem drivers through the use of education and explanation. It is the further purpose of the commissioner to take disciplinary action in order to force a change in the attitude and driving habits of problem drivers, where the department's review indicates that such action is necessary for the protection of the applicant and the public alike. This Part is intended to implement such purposes by establishing 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.

15 N.Y.C.R.R § 132.1(a).

The regulations, 15 N.Y.C.R.R § 132.1(b) define

(b) Dangerous repeat alcohol or drug offender [to] mean[s]: . . .

(2) any driver who, during the 25 year look back period, has three or four alcohol- or drug-related driving convictions or incidents in any combination and, in addition, has one or more serious driving offenses during the 25 year look back period. The regulations, 15 N.Y.C.R.R § 132.1(d)(4) also define Serious driving offense to mean . . . 20 or more points from any violations, other than the violation that forms the basis for the record review under section 132.2 of this Part.

Defendant Patrick Gallaher had the following driving conviction with points history:

Year

Points

VTL

Description

Location

1994

3

1127

Driving wrong way on One way

Bronx

1997

4

1180

Speed

Junius

1997

4

1180

Speed

Ossining

2001

6

1180

Speed

Rye

2009

3

1111

Red Light

Harrison

Total 20

[*3]Also, defendant had a:

1997

1192

DWAI

2009

1192

DWI

2013

511

AUO3

2013

1192

DWI

2017

1194

Driving without interlock

2017

511

AUO3

According to DMV records, defendant had 3 DWI convictions and 20 points from 5 convictions within the look back period. 15 N.Y.C.R.R § 136.5 (b)(2) says "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:

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.

In other words, a person with 3 or 4 DWI-related convictions/incidents [FN1] and 1 or more Serious Driving Offenses within the 25-year look-back period whose driver's license is currently revoked for any reason will never be relicensed. Gerstenzang & Sills, Handling the DWI Case in New York § 54:14.

Thus, having met the qualifications of DWI convictions and points, defendant was denied a license.

To avoid the criteria of having 20 or more points, defendant now moves pursuant to CPL § 440.10(1)(h) to vacate the 6 point, 2001 speeding ticket from Rye so as to reduce the amount of points he collected to less than 20, removing him from the serious driving offense category.Defendant claims the judgment was obtained in violation of a right of the defendant under the constitution of this state or of the United States, specifically his right to counsel, his right to due process, and his right to appeal.

Culminating with the Court of Appeals' decision in Acevedo v. New York State Dept. of Motor Vehicles, 29 NY3d 202, 54 NYS3d 614 [2017], all challenges to the legality of the new regulations have failed. See, e.g., Argudo v. New York State Dept. of Motor Vehicles, 149 AD3d 830, 51 NYS3d 589 [2nd Dep't 2017]; Kamarad v. Fiala, 149 AD3d 740, 50 NYS3d 556 [2nd [*4]Dep't 2017]; & McKevitt v. Fiala, 129 AD3d 730, 10 NYS3d 554 [2nd Dep't 2015]. There are two well-reasoned cases particularly relevant — People v. Velte, 61 Misc 3d 331, 81 NYS723d [Poughkeepsie City Court 2018] and People v. Avital, 64 Misc 3d 483, 103 NYS3d 812 [Town of E. Fishkill Just Court 2019].

In Velte, defendant, like here, pled guilty to a 6 point speed in a City Court. Velte pled to that speed 8 years before the new regulations were promulgated. Like here, Velte pled guilty to the speed by mail and was not represented by counsel then. Like here, a later DWI conviction put Velte into the purview of the DMV regulations' lifetime ban. The Velte Court, relying on People v. Luther, 48 Misc 3d 699, 12 NYS3d 491 [Monroe County Court 2014], found that - through no fault of the People or the trial court - that while the Commissioner's decision to deny defendant's prospective re-licensing application was legally proper, and was not retroactive in nature, the defendant's 2004 guilty plea could not have been knowingly, intelligently, and voluntarily entered into since the consequences of the plea could not have been known until the 2012 regulations were adopted. The lifetime revocation and re-licensing provisions enacted after defendant's plea - were wholly unavailable as part of this defendant's contemplative consideration prior to pleading guilty. The speeding violation was vacated taking Velte out of the DMV regulation's purview.

In People v. Luther, supra, the Monroe County Court affirmed the granting of a CPL § 440 motion vacating the defendant's DWI conviction, on Due Process grounds, where the defendant was unaware of the new DMV regulations until after he had pled guilty. In so holding, the Court stated:

The bedrock of due process of law is fairness . What happened here—through no fault of the People, defendant's plea attorney, or the trial court—was an affront to the notion due process and patently unfair. In balancing the equities, the Court fails to apprehend any straight-faced argument that the defendant's due process rights—as a matter of fundamental fairness—were not violated. Likewise, the Court fails to descry how, under the circumstances, the defendant should not be returned to status quo ante, having been jarred, post guilty plea and sentencing, with the harsh reality of being ineligible for re-licensure for [5] years beyond what he thought would be the case when he agreed to plead guilty and be sentenced.

However, in People v. Wheaton, 49 Misc 3d 378, 17 NYS3d 586 [Seneca County Ct. 2015], the Court disagreed with Luther Court's conclusion that CPL § 440.10 is applicable to this type of case. Notably, the guilty plea at issue in Wheaton was entered in 2004 (i.e., 8 years before the new DMV regulations were promulgated), whereas the guilty plea at issue in Luther was entered in February of 2013 - like here, after the regulations). The Wheaton Court said,

[t]he court 'has no obligation to explain to defendants who plead guilty the possibility that collateral consequences may attach to their criminal convictions (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].) In Avital, supra, defendant had an extensive history of driving offenses, including alcohol-related convictions in 2007, 2008, and 2013, as well as more than 21 points from [*5]violations (including the two convictions he sought to vacate). DMV denied defendant's application to renew his driver's license.

The Avital court found it well-settled that the loss of a driver's license was a collateral consequence of a judgment of conviction. See People v. Ford, 86 NY2d 397, 403, 633 NYS.2d 270, [1995];People v. Williams, 150 AD3d 1549, 56 NYS3d 357 [3rd Dept. 2017]; People v. Hill, 57 Misc 3d 154(A), 2017 WL 5761722 [App. Term 2nd Dept. 2017] (the possibility that the reinstatement of defendant's driver's license might be administratively denied was a collateral consequence); & People v. Olecski, 57 Misc 3d 698, 59 NYS3d 888 [Criminal Ct., New York County, 2017] (relicensing ramifications under 15 NYCRR § 136.5(b)(3)(ii) were a collateral, and not direct, consequence of plea). Thus, the Defendant's loss of his driver's license is a collateral consequence of his guilty pleas and not a valid basis to disturb the challenged convictions.

While like here, Avital argued that at the time of his guilty pleas, he did not know, and could not have known, that his plea would result in a lifetime suspension of his license to drive. In Avital this argument was unavailing since Avital's 2013 conviction for driving while intoxicated [the same year as this defendant's last DWI conviction] occurred after the Regulations had gone into effect, and Avital's insistence that the guilty pleas led to a lifetime suspension of his license was inaccurate and an attempt to focus attention on the challenged guilty pleas rather than the entirety of Avital's driving history. It was not the challenged convictions that caused the lifetime suspension of Avital's license, but rather the complete driving history that has brought Mr. Avital within the purview of the Regulations.

Whether Avital (or his attorney) knew of the Regulations at the time of the 2013 guilty plea, he certainly could have known. Defendant's ability to avoid the effect of the Regulations back in 2013 (after they were adopted) undercuts his argument that it would be unfair and unjust to hold him to his earlier guilty pleas in light of then-unknown consequences. Moreover, even before the Regulations in their present form went into effect, re-issuance of a new license to an offender whose license had been revoked was (and remains) subject to the discretion of the DMV Commissioner. See Vehicle and Traffic Law §§ 510(6)(a) & 1193(2)(c); 510(6)(a) & 1193(2)(c); & Acevedo v. New York State Dept. of Motor Vehicles, supra at 214. The Avital court found the rationale of Velte unpersuasive and declined to follow it finding Wheaton's holding that the "defendant's grievance lies with the enactment and enforcement of the new regulation, not the manner of his conviction, more compelling.

This Court is left with two conflicting lines of authority.

Right to Counsel

Defendant claims that he was not advised of his right to counsel on the speeding charge. The People claim defendant waived his rights, including the right to counsel, when defendant pled guilty by mail waiving a formal arraignment.

There is no statutory or constitutional requirement that a person charged with a traffic infraction be apprised of his right to counsel or to an assignment of counsel, People v Letterio, 16 NY2d 307, 310, 266 NYS2d 368 [1965] & People v Farinaro, 36 NY2d 283, 285, 367 NYS2d 258 [1975] (There is no statutory right to the assignment of counsel in traffic infraction prosecutions (County Law 722—a; CPL 170.10, subd. 3, par. (c)), except where there is a possibility of incarceration. People v. Weinstock, 80 Misc 2d 510, 363 NYS2d 878 [App Term, 9th & 10th Jud Dists 1974] & People v Dibello, 46 Misc 3d 143(A), 13 NYS3d 851 [App Term, 9th & 10th Jud Dists 2015]. There was no indication that there was any consideration of [*6]incarceration here. No incarceration was part of the sentence — only a fine.

VTL 1805, which has remained essential unchanged since 1990, says,

The provisions of section 170.10 of the criminal procedure law and the provisions of section eighteen hundred seven of this article may be waived, to the extent hereinafter indicated, by a defendant charged with a . . . traffic infraction, provided that he shall submit to the local criminal court having jurisdiction . . . by first class mail . . . an application setting forth . . (c) that defendant waives arraignment in open court and the aid of counsel. . . .

Defendant asserts he pled guilty by mail to a speeding ticket. Traffic tickets are "simplified traffic informations." Under CPL § 1.20(5)(b) "Simplified traffic information" means a written accusation by a police officer . . . which, being in a brief or simplified form prescribed by the commissioner of motor vehicles, charges a person with one or more traffic infractions or misdemeanors relating to traffic, and which may serve both to commence a criminal action for such offense and as a basis for prosecution thereof. In 15 N.Y.C.R.R. § 91.7, the Commissioner of the Department of Motor Vehicles has prescribed the form of a Simplified Traffic Information. The prescribed form for pleas by mail has printed (emphasis added):

I, ________ residing at __________, have been charged with a violation as specified on the reverse of this application. I acknowledge receipt of the warning printed in red on the reverse of the application, and I waive arraignment in open court and the aid of counsel. I plead guilty as charged and elect and request that the charge be dispose of and fine and penalty fixed by the court. . . .All statements are made under penalty of perjury: Date:______________ Signed ______________.

There is nothing to suggest that defendant's ticket did not contain this required language or that the sentencing court did not comply with its obligations under VTL § 1805 ("Thereupon the local criminal court may proceed as though the

defendant had been convicted upon a plea of guilty in open court"), let alone sufficient to overcome the presumption of regularity in the proceedings. People v Whitfield, 186 AD3d 1414, 1416 [2nd Dept 2020].

Accordingly, by pleading guilty by mail, defendant had notice of his right to counsel and waived that right.

Due Process

Driving is commonly held to be a privilege, not a right. People v Burnet, 24 Misc 3d 292, 302, 882 NYS2d 835 [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. Anderson v. MacDuff, 208 Misc. 271, 143 NYS2d 257 (Supreme Court 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. Hickey v Kelly, 9 AD2d 386, 389-90, 194 NYS2d 306 [4th Dept 1959], affd, 8 NY2d 715 [1960]

Defendant claims he was not advised and was unaware of his rights and therefore could not have knowingly and intelligently waived is rights. As stated above, there was a waiver. Defendant claims there was no detailed disclosure of rights. To have such a disclosure for traffic violations would eviscerate the plea by mail protocol and mandate a personal appearance by every defendant. While due process may not be avoided for the sake of convenience, requiring personal appearance to be advised of rights would be impractical especially when applied retroactively.

The Legislature by enacting VTL § 1805 and the Commissioner of Motor Vehicles by promulgating 15 N.Y.C.R.R. § 91.7 have set the parameters of the processes due a person charged with a traffic violation. There is no claim that there was any non-compliance with the statute or the regulations.

Curiously, the defendant does not claim he was not aware of his rights during the 2013 DWI proceeding. We can presume that since a DWI is a misdemeanor or felony charge, defendant was properly arraigned, advised of his right to an attorney and advised of his right to have an attorney appointed for him if he was unable to afford one. Absent defendant coming forward with any information about that DWI case, we assume it was properly executed. By 2013, defendant or his attorney knew or cold have known of the regulations and the effect it would have. Defendant's attorney did advise or should have advised defendant of the regulations. It was only after the 2013 DWI conviction that defendant came within the ambit of the regulations. That is when his rights became effected.

Furthermore, it is unfair to vacate a plea and require a new trial after the passage of so much time. The simplified traffic information here was issued in 2001. Since most police officer can retire after 15 years of service, a rookie officer who issued a ticket in 2001 would likely be retired by 2016, let alone 2020. Memories of a traffic stop will surely have faded, rendering a 19-year-old prosecution highly unlikely. Defendant could have known of the impact of the regulations in 2013, but waited until now to vacate the old plea, prejudicing the People's opportunity to prosecute the case.

Right to Appeal

Here, defendant pled guilty to the speeding charge. A plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction; nothing remains but to give judgment and determine punishment. Boykin v Alabama, 395 US 238, 242, 89 S Ct 1709, 1711-12 [1969]. There is no federal constitutional right to appellate review (see McKane v. Durston, 153 U.S. 684, 687—688, 14 SCt 913 [1894] ) and no state constitutional right to appellate review in a criminal case, except to the Court of Appeals where the judgment is of death and as otherwise legislatively provided (NY Const., art. VI, § 3). People v Grimes, 32 NY3d 302, 310, 91 NYS3d 315 [2018]. Indeed, "[a]t common law, appellate review of a criminal conviction, regardless of how grave the offense, was not viewed as a necessary component of elementary due process" (People v. Romero, 7 NY3d 633, 636, 826 N.Y.S.2d 163 [2006] ). People v Grimes, supra.

There is a statutory right to appeal but it is limited to only challenges based solely upon the ground that a sentence was harsh or excessive. CPL § 450.10. There is no claim that the fine imposed was either excessive or harsh, nor illegal. The sentence of a fine for the speeding violation was not illegal, nor is there any claim it was.

There was no basis for an appeal and, in any event, the time to appeal has long since run.

Interest of Justice

Defendant claims it was unfair to change the rules retroactively. The challenged speeding plea was in 2001. The DMV regulations were adopted in 2012. The last DWI conviction was in 2013. It was not the 2001 plea that subjected defendant to the DMV regulations, but rather a review of his entire driving history triggered by the third DWI conviction in 2013 — a conviction [*7]after the DMV regulations were adopted.[FN2]

There is nothing to indicated defendant was without counsel in that case, or that he was not advised or was unaware of the consequences of that DWI conviction given his driving history. That would seem to be the time when he could have been weighed and reviewed everything.

The purpose of the DMV regulations is to protect the public from dangerous repeat drunk drivers for all the reasons described at the beginning of this decision. Thus, to fall within the regulations there must be at least 3 DWI convictions.

"Under Vehicle and Traffic Law sections 510(6), 1193(2)(c)(3), the Commissioner of Motor Vehicles is authorized to invoke her discretion to establish criteria and methodology for re-licensing after revocation of a driver's license. By statute, and recognizing the special expertise of the DMV, the Commissioner has been granted broad, explicit and exclusive administrative authority over the issuance of driver licenses and the authority to adopt the rules and regulations to carry out the DMV's functions (Boreali v. Axelrod, 71 NY2d 1, 523 N.Y.S.2d 464, 517 N.E.2d 1350 [1987] ). Surely, in light of the DMV's statutory purposes of insuring highway safety by keeping recidivist drunk drivers off the road (Quealy v. Passidomo, 124 AD2d 955, 508 N.Y.S.2d 706 [3d Dept. 1986] ), the Commissioner's authority to enact specific regulations—including defining when and under what circumstances an applicant may "permanently" be denied a license after a revocation of license—is entirely consistent her statutory power to license a driver (Barton Trucking Corp. v. O'Connell, 7 NY2d 299, 307, 197 N.Y.S.2d 138, 165 N.E.2d 163 [1959] ). Further, given the statutorily authorized discretion granted the Commissioner to refuse to issue a license after a mandatory minimum period of revocation, it cannot be concluded that the Legislature intended, by enacting Section 1193(2)(c)(3), to limit her authority to impose a lifetime license restriction to only one circumstance, or that the DMV exceeded its authority and acted outside of the law in issuing the subject regulatory amendments (Cubas v. Martinez, 8 NY3d 611, 838 N.Y.S.2d 815, 870 N.E.2d 133 [2007] ). Matter of Carney v NYS Dept. of Motor Vehicles, 43 Misc 3d 674, 678, 982 NYS2d 298 [Sup Ct Albany County 2014], affd as mod sub nom. Matter of Carney v New York State Dept. of Motor Vehicles, 133 AD3d 1150, 20 NYS3d 467 [3rd Dept 2015], affd sub nom. Matter of Acevedo v New York State Dept. of Motor Vehicles, 29 NY3d 202, 54 NYS3d 614 [2017].

The interests of justice include the obvious danger to human life of the driver, others on the road, including other drivers and their passengers, bicyclists, and pedestrians, and dangers to the environment and structures within the community. By having 3 DWI convictions and accumulating 20 points, a driver has shown a history of bad behaviors that put himself and others at risk.

Nor is a driver's financial hardship from the loss of a license a countervailing factor. People v. Capraro, 51 Misc 3d 1212(A), 2016 WL 1590942 [Mt. Vernon City Court, 2016] (CPL § 440 motion to vacate speeding conviction denied despite extreme financial hardship suffered by defendant resulting from permanent ineligibility for relicensing due to 15 NYCRR § 136.5[b][2]).

Finally, were the Court to grant the Defendant's motion, it would, in effect, be [*8]invalidating the Regulations as applied to the Defendant. In light of his driving history, the Defendant appears to be exactly the type of problem driver the Regulations were promulgated to address. The Court will not intrude upon the province of the Commissioner of the Department of Motor Vehicles by vacating guilty pleas.

Accordingly, defendant's motion to vacate the 2001 guilty plea for speeding is denied.

Dated: Rye, New York

JOSEPH L. LATWIN

December 16, 2020

Rye City Judge Footnotes

Footnote 1:This is a 3 strikes and you're out (of a license) rule.

Footnote 2:This would be akin to blaming the kid who struck out ending the game for losing the game.