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City Court, City of White Plains, New York.

The PEOPLE of the State of New York, Plaintiff, v. Edwin FORBES, Defendant.

Decided: May 13, 2002

Mangialardi & Berardino, Hartsdale, for Defendant. Edward P. Dunphy, Corporation Counsel, White Plains (Joseph W. Henneberry of counsel), for plaintiff.

Defendant moves pursuant to CPL § 440.10(h) for an order vacating a judgment rendered on January 11, 2002 convicting him of speeding in violation of Vehicle and Traffic Law § 1180(d) and imposing a fine of $75.00.   It is defendant's contention that the conviction was obtained in violation of his rights under the Constitution.

 Criminal Procedure Law § 170.10(4)(b) provides that where a traffic infraction is charged, the court must inform the defendant “that a judgment of conviction for such offense would, in addition to subjecting the defendant to the sentence provided therefor, render his license to drive a motor vehicle and his certificate of registration subject to suspension and revocation as prescribed by law and that a plea of guilty to such offense constitutes a conviction thereof to the same extent as a verdict of guilty after trial.”   See also, Vehicle and Traffic Law § 1807(1).

A review of the record shows that defendant was not informed of the above.   As a result of defendant's conviction, the New York State Department of Motor Vehicles issued an order revoking his driver's license based upon three convictions for speeding within an eighteen month period.

It is defendant's contention that absent such compliance with CPL § 170.10(4)(b), his conviction was a nullity.   Missing, however, from defendant's analysis is any reference to either CPL § 170.10(5) or VTL § 1807 which state that the giving of such information in a printed statement on a summons or ticket shall constitute compliance with the requirements of CPL § 170.10(4)(b).

Reading the traffic ticket issued to defendant in this case indicates that the information referred to above was in fact set forth in bold twelve point type as required by law (see, VTL § 1807).   Accordingly, the Court was not required to recite this information to the defendant prior to acceptance of his guilty plea (see, People v. Hyman, 81 Misc.2d 858, 366 N.Y.S.2d 989 [Crim. Ct. Kings Co.1975];  but cf., People v. Woodard, 188 Misc.2d 7, 727 N.Y.S.2d 575 [Just. Ct. Nassau Co.2001] ).

 In addition, it should be noted that revocation of defendant's license to operate a motor vehicle was a collateral consequence of his conviction (see, Moore v. Hinton, 513 F.2d 781 [5th Cir.1975] ).   Therefore, it would appear that the Court was under no duty to advise defendant of same (see e.g., People v. Ford, 86 N.Y.2d 397, 633 N.Y.S.2d 270, 657 N.E.2d 265 [1995] ).

 Next, it is argued that the conviction for speeding was obtained in violation of defendant's right to counsel.   It is well-settled that there is no constitutional requirement that a defendant have the benefit of counsel in the prosecution of a traffic infraction (see, People v. Letterio, 16 N.Y.2d 307, 266 N.Y.S.2d 368, 213 N.E.2d 670 [1965];  People v. Russo, 149 A.D.2d 255, 545 N.Y.S.2d 211 [2nd Dept.1989] ).   However, if a defendant is subject to possible imprisonment, he or she must be advised of their right to counsel and to have counsel assigned where the defendant is financially unable to obtain same (see, People v. Weinstock, 80 Misc.2d 510, 363 N.Y.S.2d 878 [App. Term 2nd Dept.1974];  Matter of Davis v. Shepard, 92 Misc.2d 181, 399 N.Y.S.2d 836 [Sup.Ct. Steuben Co.1977];  cf., CPL § 170.10 [3][c] ).

 This Judge has reviewed the certified transcript of the minutes taken during the plea before a colleague of the Court.   It is uncontested that defendant was not advised of his “right to the aid of counsel” at every stage of the proceeding (see, CPL §§ 170.10[3];[4][a] ).   The Appellate Term in this District has held that a failure to inform a defendant charged with speeding under VTL § 1180[b] of his or her rights as set forth in CPL § 170.10 [3] is reversible error (see, People v. Johnson, N.Y.L.J., July 15, 1996, p. 25, col. 5 [App. Term 9th & 10th Jud. Dists.];   see also, People v. Warcup, 285 A.D. 1077, 139 N.Y.S.2d 721 [2nd Dept.1955];  People v. Miller, 2 Misc.2d 782, 156 N.Y.S.2d 540 [Co. Ct. Nassau Co.1956];  cf., People v. Felberbaum, 9 N.Y.2d 213, 213 N.Y.S.2d 53, 173 N.E.2d 783 [1961] ).   This rule of law appears to be compulsory irrespective of the sentence involved (see, e.g., People v. Ross, 67 N.Y.2d 321, 502 N.Y.S.2d 693, 493 N.E.2d 917 [1986];  People v. Van Florcke, 120 Misc.2d 273, 467 N.Y.S.2d 298 [App. Term 9th & 10th Jud. Dists.1983] ).

But for a statutory mandate to the contrary, the Court would be inclined to vacate the judgment of conviction, permit defendant to withdraw his previously entered plea of guilty and restore the matter to the trial calendar for further proceedings.   Nonetheless, sufficient facts appearing in the record to have permitted appellate review, defendant is procedurally barred from obtaining the relief he has requested (CPL § 440.10[2][c];  People v. Cooks, 67 N.Y.2d 100, 500 N.Y.S.2d 503, 491 N.E.2d 676 [1986] ).

 Defendant also seeks an order vacating the judgment in the interests of justice.   Specifically, defendant asserts that revocation of his driver's license will deprive him of the ability to continue earning a living as a commercial driver and thus result in extreme hardship for both defendant and his family.

The Court of Appeals has long recognized that the Legislature intended by such revocation “to remove from the roads of our State drivers who, by their conduct, have been found to have repeatedly placed their own personal interests above those of the rest of the citizenry.” (see, Matter of Horodner v. Fisher, 38 N.Y.2d 680, 382 N.Y.S.2d 28, 345 N.E.2d 571 [1976] ).   Accordingly, the Court finds that it would not be in the interests of justice to contravene this legislative intent by vacating defendant's judgment of conviction based merely upon financial hardship.

In any event, there is no statutory authority in New York to grant such post-judgment relief under CPL 440.10 on either “equitable grounds” or in the “interests of justice” (see e.g., People v. Agero, 234 A.D.2d 94, 651 N.Y.S.2d 430 [1st Dept.1996];  People v. Felman, 137 A.D.2d 341, 529 N.Y.S.2d 395 [3rd Dept.1988] [concurring opinion];  see also, People v. Reyati, 254 A.D.2d 199, 681 N.Y.S.2d 231 [1st Dept.1998] [judgment of conviction may only be vacated upon a legal ground specified in CPL § 440.10];  People v. Cooks, 113 A.D.2d 975, 493 N.Y.S.2d 646 [3rd Dept.1985] [a motion to vacate a judgment must be based upon one of the grounds enumerated in CPL § 440.10] ).

Motion denied.


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