Decision Summary: Motion to vacate conviction is summarily denied. DECISION AND ORDER On September 25, 2012, defendant pled guilty to one count of Operating a Motor Vehicle While Under the Influence of Alcohol (Vehicle and Traffic Law §1192 [2]). Defendant was sentenced to a conditional discharge, a six-month license revocation, a $500 fine, and was required to install an ignition interlock device on his vehicle for one year. Additionally, defendant was ordered to complete the Drinking Driving Program (DDP) and Victim Impact Panel (VIP). Defendant now moves to vacate his conviction pursuant to Criminal Procedure Law 440.10 (1) (h) and (j), alleging that his plea was not made knowingly, voluntarily, and intelligently because he did not know that his conviction could cause the Department of Motor Vehicles (DMV) to decline his request for a new license. Procedural History On May 20, 2012, defendant was arrested for two counts of Operating a Motor Vehicle While Under the Influence of Alcohol (VTL §§1192 [2] and [3]) after he was observed driving a vehicle with a flat tire on a public roadway in Queens. Defendant was found to have a blood alcohol content (BAC) of .159. Defendant, represented by counsel, chose to plead guilty on September 25, 2012. During the plea and sentencing colloquy, defendant was informed that his license would be revoked for six months. Defendant admitted that he had driven while under the influence of alcohol and he was sentenced during the same proceeding. On the same day as defendant’s plea, the DMV issued a new regulation for the protection of the public and the applicant in situations where an individual with multiple alcohol-related convictions applied for relicensing (15 NYCRR §136.1). The new regulations require the DMV Commissioner to deny an application for relicensing if a motorist has five or more alcohol-related convictions in their lifetime (15 NYCRR §136.5 [b] [1]) or three or four alcohol-related driving convictions and one or more serious driving offenses within the past twenty-five years (15 NYCRR §136.5 [b] [2]). Defendant was subsequently arrested and convicted of a felony Driving While Intoxicated charge in New York County on June 25, 20141. Defendant was sentenced to five years of probation and a further revocation of his driving privileges. After defendant’s probation ended, he applied for reinstatement of his revoked driver’s license. On February 10, 2020, defendant was advised that his application was denied and that he was presumptively ineligible for a driver’s license because he had three alcohol-related driving convictions and one serious driving offense in his driving history. CPL 440.10 (1) (h) Motion Pursuant to CPL 440.10 (1) (h), a defendant is entitled to vacatur of a “judgment obtained in violation of a right of the defendant under the constitution of this state or of the United States.” Defendant initially argues that his guilty plea was not made knowingly, voluntarily, and intelligently because he was unaware that his conviction — when coupled with his prior and subsequent alcohol-related convictions and serious driving offense — rendered him permanently ineligible to obtain a driver’s license in New York. Defendant further argues that since his plea was not entered into knowingly, intelligently, and voluntarily, the judgment violated his constitutional right to due process. In order for criminal defendants to receive due process before pleading guilty to criminal offenses, courts must ensure that the defendant knowingly, voluntarily, and intelligently chooses to plead guilty (see United States v. Ruiz, 536 US 622 [2002]; People v. Peque, 22 NY3d 168 [2013]). To that end, courts must inform defendants of all direct consequences of their plea (see e.g. People v. Catu, 4 NY3d 242 [2005]). Courts need not, however, inform defendants of every possible repercussion of a guilty plea — in other words — courts generally have no obligation to inform defendants of collateral consequences (People v. Gravino, 14 NY3d 546 [2010]; see also Peque, 22 NY3d at 184). In Gravino, the Court of Appeals recognized that there “may be cases in which a defendant can show that he pleaded guilty in ignorance of a consequence that, although collateral for purposes of due process, was of such great importance to him that he would have made a different decision had that consequence been disclosed.” (14 NY3d at 559). The Court of Appeals, however, determined that the onerous burdens of sex offender registration, which could be indefinite, and the terms and conditions of probation were collateral consequences of a plea (see id.). Then in People v. Harnett, 16 NY3d 200 [2011], the Court of Appeals held that the possibility that defendant might be committed to a facility, even indefinitely, under the Sex Offender Management and Treatment Act (SOMTA) was, as a general matter, a collateral consequence absent certain circumstances. By contrast, the Court of Appeals held in Peque, that deportation from the United States, although technically a collateral consequence of a conviction, was of such tremendous importance that defendant was entitled to notice prior to accepting a plea (Peque, 22 NY3d at 176). The Court noted that deportation deprives the defendant of liberty by first detaining and then forcibly removing him from the country (id. at 192). This “uniquely devastating deprivation of liberty” was held to be different from other collateral consequences because it represented a “unique consequence” that must be mentioned by a trial court prior to a plea (id.). Contrary to defendant’s position, this Court finds that the DMV’s decision not to grant defendant a license, while clearly important to him, cannot be said to be as serious a liberty deprivation as deportation. Loss of driving privileges has long been held to be, at most, a collateral consequence of a conviction (see People v. Ford, 86 NY2d 397, 403 [1995], overruled on other grounds by People v. Peque, 22 NY3d 168 [2013]; Moore v. Hinton, 513 F2d 781 [5th Cir 1975]). Despite defendant’s protestations to the contrary, this Court sees no reason to depart from this established rule. Defendant’s initial motion primarily relied upon two trial court cases in which courts had granted vacatur under similar circumstances, but both cases were overturned by the Appellate Division, Second Department, during the pendency of this motion (see People v. DiTore, 209 AD3d 655 [2d Dept 2022]; People v. Maggio, 210 AD3d 798 [2d Dept 2022]). In both DiTore and Maggio, the Second Department found that the defendant’s lack of knowledge that the DMV might not reinstate his license did not prevent his plea from being entered into knowingly, voluntarily, and intelligently (id.). As the Second Department stated in Maggio, the fact that the defendant’s conviction could contribute to a decision by the DMV to deny him a license does not represent “an exceptionally severe liberty deprivation in order to fall within the narrow category of collateral consequences of which a defendant must be advised at the time of entering the plea” (Maggio, 210 AD3d at 803; citing Peque, 22 NY3d at 192, see also Gravino, 14 NY3d at 550). These recent Second Department decisions are binding upon this Court and, thus, this Court finds that defendant has not established that his conviction was obtained in violation of his due process rights. To the extent that defendant’s characterization of the plea allocution as “cursory” can be construed as an argument that the plea allocution was insufficient, such an argument is not properly before this Court in a CPL 440 motion. Under CPL 440.10 (2) (c), a court must deny a motion to vacate a judgment if it is based upon facts that appear on the record of the proceedings and defendant failed to take or perfect an appeal to litigate that claim. Defendant did not take an appeal and litigate this claim. The People correctly argue that this claim would be procedurally barred as a result. CPL 440.10 (1) (j) Motion Billed as the “One Day to Protect New Yorkers” act, CPL 440.10 (1) (j) was enacted for the stated purpose of enabling a person facing deportation for a misdemeanor conviction to have the conviction reduced to a lesser offense or to be resentenced in accordance with new sentencing laws (see William C. Donnino, Prac Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law §70.15 at 153-154). The legislation was enacted simultaneously with the amendments to Penal Law §70.15 (1-a) that reduced the maximum incarceratory sentence on a misdemeanor from one year to 364 days. Indeed, the only language used by the legislature in describing this change to the law was “to amend the Penal Law and the Criminal Procedure Law, in relation to reducing certain sentences of imprisonment for misdemeanors to three hundred sixty-four days” (New York Bill Jacket, 2019 S.B. 1505, ch 55)2. These amendments were necessary because under federal law, a conviction for a crime involving moral turpitude renders an individual deportable when the potential term of imprisonment is one year or longer (8 USC §1227 [a] [2] [A]). Crimes such as petit larceny are considered crimes involving moral turpitude (see e.g. Ferrerias Veloz v. Garland, 26 F4th 129 [2d Cir 2022]). The clear and laudable purpose of this legislation, which reduced the maximum potential sentence for a misdemeanor to one day short of one year, was to protect New Yorkers from deportation for misdemeanor offenses due to the technicality that a misdemeanor previously carried a potential sentence of one year. Pursuant to CPL 440.10 (1) (j), a defendant may move to vacate a judgment on the grounds that “the judgment is a conviction for a class A or unclassified misdemeanor entered prior to the effective date of this paragraph and satisfies the ground prescribed in paragraph (h) of this subdivision.” Furthermore, the statute creates a presumption that a plea was not knowing, voluntary, and intelligent when there are “ongoing collateral consequences, including potential or actual immigration consequences.” (CPL 440.10 [1] [j]). Defendant moves to vacate his conviction under CPL 440.10 (1) (j) arguing that, because he was convicted of an unclassified misdemeanor prior to the effective date of this statute and now faces ongoing collateral consequences, he may avail himself of the presumption that his plea was not entered into knowingly, intelligently, and voluntarily. Furthermore, defendant claims that the People cannot rebut the presumption because he was not aware, at the time of his plea, that his conviction could contribute to a lifetime revocation of his driver’s license. As fully detailed above, defendant has failed to establish that his conviction “satisfies the ground prescribed in paragraph (h)” of CPL 440.10 (1). The Second Department expressly ruled in both Maggio and DiTore that defendants’ pleas were still made knowingly, intelligently, and voluntarily despite their lack of knowledge that the pleas could contribute to a DMV denial of a relicensing application and, therefore, the convictions did not satisfy the ground prescribed in paragraph (h) (Maggio, 210 AD3d at 800; DiTore, 209 AD3d at 667). As stated by the Court of Appeals, the “commissioner [of the DMV] will have exclusive authority over post-revocation relicensing and […] those relicensing determinations will be discretionary.” (Matter of Acevedo v. New York State Dept. of Motor Vehs., 29 NY3d 202, 220 [2017]). As a result, the court, who does not control the DMV, was not required to inform defendant about what effect certain driving offenses may have on the DMV’s future actions (DiTore, 209 AD3d at 667). Thus, defendant’s plea in the instant case was made knowingly, intelligently, and voluntarily, and the judgment was not “obtained in violation of a right of the defendant under the constitution of this state or of the United States” (see CPL 440.10 [1] [h]). Furthermore, defendant has failed to show that he is suffering ongoing collateral consequences as a result of this conviction — his second conviction and, crucially, not the conviction that actually triggered the DMV regulation. In Maggio, the Second Department cast doubt upon whether the DMV’s decision not to grant a relicensing application was a collateral consequence of the conviction that triggered the regulation. The Second Department stated “to the extent that the potentially permanent license revocation authorized under the subject regulation is a consequence of the defendant’s instant plea of guilty at all,” (Maggio, 210 AD3d at 800) and then favorably cited People v. Avital, 64 Misc 3d 483 (Town of East Fishkill Just Ct, Dutchess County 2019), a trial court case that held that permanent license revocation was not a consequence of each conviction but of the defendant’s overall driving history. This Court agrees, at least to the extent that this conviction, defendant’s second conviction, did not trigger the DMV regulation. This Court need not address the question of whether or not the DMV’s decision to deny defendant’s relicensing application was a collateral consequence of his third conviction, the conviction that actually triggered the regulation. Defendant further argues that but for this second conviction, he would be eligible for relicensing and, thus, the collateral consequence is a result of this conviction. This argument fails when viewed through any practical lens. Under this theory, defendant’s plea to each of his alcohol-related convictions would not be knowing, intelligent, and voluntary because each of his convictions contribute to his driving history. But courts are not required to act with celestial clarity to foresee that the defendant may again disobey the law and commit additional crimes (People v. Taylor, 60 AD3d 708 [2d Dept 2009], lv denied 12 NY3d 860 [2009]). It is, in fact, sufficient that the defendant be fully informed of the punishment for the crime he has already committed (People v. Jackson, 105 Misc 2d 437 [Sup Ct, NY County 1980]). Society has a right to expect that a defendant will not commit subsequent crimes (Jackson, 105 Misc 2d 437, citing People v. Pray, 50 AD2d 987 [1975]). Here, this Court was under no obligation to foresee that defendant might commit a third alcohol-related driving offense and, therefore, was under no obligation to inform defendant of the DMV regulation. Defendant’s choice to commit a third alcohol-related driving offense grants him no right to be insulated from the effects of his first two convictions. Furthermore, if this Court were to accept defendant’s argument, it would lead to an absurd result. Under defendant’s theory, any defendant who has three alcohol-related driving convictions is subject to the ongoing collateral consequence of the DMV regulation, therefore any defendant who has three alcohol-related driving convictions would be entitled to vacatur of all three of their convictions3. But a defendant with only two alcohol-related driving convictions would not be subject to the ongoing collateral consequence of the DMV regulation and, thus, would not be entitled to vacatur. This creates an absurd situation where defendants receive a benefit from having committed a third alcohol-related driving offense. Crucially, defendant also seeks a remedy that is not available under the plain language of that statute — outright vacatur of the conviction. Pursuant to CPL 440.10 (9), a subsection added to the CPL simultaneously with paragraph (j), when a court grants a motion under paragraph (j), “the court may either (a) With the consent of the people, vacate the judgment or modify the judgment by reducing it to one of conviction for a lesser offense; or (b) Vacate the judgment and order a new trial wherein the defendant enters a plea to the same offense in order to permit the court to resentence the defendant in accordance with the amendatory provisions of subdivision one-a of section 70.15 of the penal law” (emphasis added). Nonetheless, defendant argues that the remedy of outright vacatur is still available under CPL 440.10 (4), the general provision for CPL 440 remedies. This Court relies on well-settled Court of Appeals precedent that “[t]he governing rule of statutory construction is that courts are obliged to interpret a statute to effectuate the intent of the Legislature, and when the statutory ‘language is clear and unambiguous, it should be construed so as to give effect to the plain meaning of [the] words’ used.” (People v. Finnegan, 85 NY2d 53, 58 [1995]; People v. Francis, 30 NY3d 737, 740 [2018]; Matter of Walsh v. New York State Comptroller, 34 NY3d 520, 524 [2019]; Colon v. Martin, 35 NY3d 75, 78 [2020]). The plain meaning of “may either,” especially when coupled with an “or” between two alternatives, denotes a choice between the specified alternatives, excluding all other alternatives (Miriam-Webster Online Dictionary, either [https://www.merriam-webster.com/dictionary/either]; Collins Cobuild English Usage, HarperCollins Publishers [https://www.thefreedictionary.com/either+…+or] [you use either and or when you are mentioning two alternatives and you want to show that no other alternatives are possible]). This is also the manner in which New York State courts have used this phrase. In People v. Jackson, 106 AD2d 93 [2d Dept 1984], the Second Department reversed an amended sentence and remanded the case stating that the sentencing judge may either reimpose the amended sentence with the proper record or resentence the defendant based upon an updated presentence report. Clearly, the Second Department intended to direct the sentencing judge to take one of the prescribed actions, not some third unmentioned action (see also People v. Correa, 248 AD2d 630 [2d Dept 1998], affd 93 NY2d 821 [1999] [remanding the case so that the defendant "may either" withdraw his plea or accept a lawful sentence]). Thus, this Court is constrained to interpret the remedies proscribed in CPL 440.10 (9) as the only available remedies if this Court were to grant a motion under CPL 440.10 (1) (j). Furthermore, under CPL 440.10 (9) (a) a court may only vacate the conviction outright with the consent of the People (NY CLS Desk Edition Gilbert’s Criminal Practice Annual 2022 Edition §440.10 at CPL-569 [2002] [CPL 440.10 (1) (j) is a sufficient ground for a court to vacate or reduce a count for immigration purposes "if the prosecution does not oppose"]). If this Court were to find that outright vacatur was available under CPL 440.10 (4), this Court would be invalidating 440.10 (9) (a) and reading the statute in a manner that renders that provision inert — something this Court is not permitted to do (see People v. Galindo, 38 NY3d 199, 205 [2022]; McKinney’s Cons Laws of NY, Book 1, Statutes §144). Additionally, applying the principles of common sense to this analysis, the remedies set forth in CPL 440.10 (9) are specially tailored to enact the actual goal of this legislation — aid New Yorkers who were subject to deportation for misdemeanor convictions. There is no indication that the legislature intended to support defendant’s alternative reading or to allow any defendant subject to any consequence to vacate any misdemeanor conviction4. This Court finds that defendant has failed to establish that he is suffering from ongoing collateral consequences as a result from this conviction (see Maggio, 210 AD3d at 800; Avital, 64 Misc 3d at 485). Furthermore, the remedy sought by defendant is not amongst those specially tailored to enact the legislative goals of CPL 440.10 (1) (j), and is, therefore, unavailable to defendant (see CPL 440.10 [9]). In light of defendant’s driving history, he appears to be exactly the type of driver that the DMV regulation was promulgated to address (see People v. Gallagher, 70 Misc 3d 1210[A], 2020 NY Slip Op 51599[U] [Rye City Ct 2020]). Defendant cannot then use the same regulations as a sword to vacate his conviction after a knowing, intelligent, and voluntary guilty plea. This Court finds that vacatur of this conviction would be an absurd result and not in the interests of justice. Defendant’s motion to vacate this conviction pursuant to CPL 440.10 (1) (j) is denied in all respects. Conclusion Defendant’s motion to vacate his conviction pursuant to CPL 440.10 (1) (h) and (j) is summarily denied. This constitutes the Decision and Order of the Court. Dated: February 10, 2023
