The defendant was charged by a uniform traffic information, with speeding in violation of VTL §1180 (d). It was alleged that the defendant was going 69 miles per hour in a 40 mile per hour zone on July 6, 2021 at 6:21 P.M. The defendant pled guilty by mail having signed the plea of guilty on July 8, 2021, without the assistance of counsel. In so doing the defendant hand wrote in the section reserved for an optional statement as follows: “While I fully respect the officer [and] understand I was over the limit, I am certain I was not going as fast as claimed. Please understand I was going to pick up my ill son from practice as well.” The court accepted his plea by mail on July 30, 2021. The court imposed a fine of $97.00 and the required surcharge of $93.00 for a total of $190.00. A written notice of same, dated August 4, 2021, was mailed to the defendant. Thus August 4, 2021 was the date of the judgment of conviction.1 To date no part of the fine or surcharge has been paid by the defendant. This case is again before the court because the defendant’s attorney, retained subsequent to the defendant’s plea by mail, filed a motion dated August 16, 2021, requesting that the court issue an order permitting the defendant to withdraw his plea of guilty. Attached to the Notice of Motion is an Attorney Affirmation and a document labeled “Affidavit” which was signed by the defendant, but whose signature was not notarized…The People have filed a response in opposition to said motion. The defense alleges that subsequent to pleading guilty by mail, the defendant consulted the defense counsel now appearing herein. Defense counsel advises that he submitted a notice of appearance and a not guilty plea to the court. Neither of which are in the court’s file. Nor did defense counsel attach copies of same as exhibits to his motion papers. Nevertheless, defense counsel states that while waiting for a court date he was advised that his client received the said fine notice from the court. In his affirmation, defense counsel argues that the court should permit the withdrawal of his client’s plea because the defendant did not believe he was speeding as fast as was alleged in the simplified traffic information; that the plea was not knowingly and voluntarily made; that he did not seek the advice of legal counsel; that he did not understand court process, or what his options were; that he received an assessment notice from the New York State Department of Motor Vehicles, which he did not realize was a potential legal consequence prior to entering his plea. In his unsworn statement, the defendant alleges that he did not understand that the offense in question carried a significant point penalty on his driver license and that it would result in a DMV driver assessment. The defendant went on to argue that he did not understand he had options or that he could go court to present a defense or proffer mitigation to the court. Issues Presented. Is the fact that the defendant was unaware, among other things, that at the time he pled guilty to a speeding violation that his plea would result in a driver responsibility assessment a reason to permit him to withdraw his guilty plea? Should the defendant be allowed to withdraw his plea because he was not represented by an attorney when he entered his guilty plea? Legal Analysis. A motion to vacate a judgment of conviction is governed by CPL §440.10 (1). That section states in pertinent part as follows: “At any time after the entry of a judgment, the court in which it was entered may, upon motion of the defendant, vacate such judgment upon the ground that: (a) The court did not have jurisdiction of the action or of the person of the defendant; or (b) The judgment was procured by duress, misrepresentation or fraud on the part of the court or a prosecutor or a person acting for or in behalf of a court or a prosecutor; or (c) Material evidence adduced at a trial resulting in the judgment was false and was, prior to the entry of the judgment, known by the prosecutor or by the court to be false; or (d) Material evidence adduced by the people at a trial resulting in the judgment was procured in violation of the defendant’s rights under the constitution of this state or of the United States; or (e) During the proceedings resulting in the judgment, the defendant, by reason of mental disease or defect, was incapable of understanding or participating in such proceedings; or (f) Improper and prejudicial conduct not appearing in the record occurred during a trial resulting in the judgment which conduct, if it had appeared in the record, would have required a reversal of the judgment upon an appeal therefrom; or (g) New evidence has been discovered since the entry of a judgment based upon a verdict of guilty after trial, which could not have been produced by the defendant at the trial even with due diligence on his part and which is of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant; provided that a motion based upon such ground must be made with due diligence after the discovery of such alleged new evidence; or (g-1) Forensic DNA testing of evidence performed since the entry of a judgment, (1) in the case of a defendant convicted after a guilty plea, the court has determined that the defendant has demonstrated a substantial probability that the defendant was actually innocent of the offense of which he or she was convicted, or (2) in the case of a defendant convicted after a trial, the court has determined that there exists a reasonable probability that the verdict would have been more favorable to the defendant. (h) The judgment was obtained in violation of a right of the defendant under the constitution of this state or of the United States.” Consequences of a Plea. In sum and substance, the defendants motion to vacate his plea is based on his lack of knowledge of the collateral consequences of his plea, to wit: the driver responsibility assessment of $300.00 imposed through the New York State Department of Motor Vehicles. The defendant received a notice of same, dated August 7, 2021, from the New York State Department of Motor Vehicles.2 In fact, not all consequences of a conviction need be known by a defendant before the plea is taken by the court. The Court of Appeals in People v. Peque, 22 NY3d 168, 184, 980 N.Y.S.2d 280, 291 [2013] held that the trial court must only advise defendants of the direct consequences of a guilty plea not the collateral consequences of that plea. The court went on to describe the difference between a direct and collateral consequence of a guilty plea. In addition, the said decision set out specific examples of both categories. The court stated as follows: “A direct consequence of a guilty plea is one ‘which has a definite, immediate and largely automatic effect on [the] defendant’s punishment’…whereas a collateral consequence is one ‘peculiar to the individual’s personal circumstances and one not within the control of the court system’…. Examples of direct consequences include the forfeiture of trial rights…, the imposition of a mandatory term of imprisonment that results from an unconditional guilty plea…, and the imposition of mandatory postrelease supervision…. By contrast, ‘[i]llustrations of collateral consequences are loss of the right to vote or travel abroad, loss of civil service employment, loss of a driver’s license [emphasis added], loss of the right to possess firearms[,]…an undesirable discharge from the Armed Services’…the imposition of a prison term upon revocation of postrelease supervision…, sex offender registration under the Sex Offender Registration Act (SORA)…, and civil confinement under the Sex Offender Management and Treatment Act (SOMTA)….”[internal citations omitted]3 An exception to that rule is when the legislature passes a law requiring that the court advise the defendant of consequences of a particular collateral consequence. For example in Peque the Court of Appeals stated that it had previously ruled “…that ‘[d]eportation is a collateral consequence of conviction because it is a result peculiar to the individual’s personal circumstances and one not within the control of the court system’”4 The court went on to state that soon after that ruling “…the Legislature passed CPL 220.50(7). That statute requires a court to inform a noncitizen defendant that a guilty plea may subject the defendant to deportation but it also states that ‘[t]he failure to advise the defendant pursuant to this subdivision shall not be deemed to affect the voluntariness of a plea of guilty or the validity of a conviction….”5 In any event, based on the explanation and discussion set out herein above, the receipt of a driver responsibility notice subsequent to of a plea and conviction to a simple traffic infraction, is by definition collateral consequences of said plea.6 It must be further noted that CPL §440.10 (1) does not set out a lack of knowledge of the collateral consequences of a plea to be justification for the withdrawal of a guilty plea. Lack of Attorney Representation. The defendant’s argument that he should be permitted to vacate his plea based on the fact that he was not represented by counsel when he plead to the charge of speeding, to wit: VTL 1180 (d) is insupportable. In fact, there is no requirement that a court advise a defendant charged with speeding that he has the right to counsel. (People v. Letterio, 16 NY2d 307,311, 266 N.Y.S.2d 368 [1965]) Furthermore the defendant’s statement in his un-notarized “affidavit” that “At the time of pleading guilty I did not know there were options nor did I fully understand that I had the option of attending Court to present a defense or proffer mitigation to the court” lacks credibility.7 The remaining reasons set out by the defense as to why the defendant did not hire counsel are either not credible and/or without merit. Conclusion. In reference to the motion to vacate a judgment and to set aside a sentence CPL §440.30 (4) (a) states “Upon considering the merits of the motion, the court may deny it without conducting a hearing if: The moving papers do not allege any ground constituting legal basis for the motion”. In this case the defendant’s motion papers argue that the court should grant his application to vacate his plea of guilty to the speeding charge and to set aside the sentence of a fine and surcharge. He contends that said relief would be justified because he was unaware of the collateral consequences, among other things, of a driver assessment penalty and because he was not represented by an attorney. The moving papers herein do, in fact, fail to allege any ground that would constitute a legal basis to vacate the defendant’s plea of guilty or to set aside the sentence imposed by the court. As a result, the said motion of the defendant is summarily denied. This constitutes the decision and order of this court. Dated: November 10, 2021
