People v. Bowman

• Docket Number: 12110133
• Decision Date: 21 December 2023
• Citation: 2023 NY Slip Op 51413 (U)
• Parties: The People of the State of New York, Plaintiff, v. Brandon G. Bowman, Defendant.
• Court: New York Justice Court

2023 NY Slip Op 51413(U)

The People of the State of New York, Plaintiff,
v.
Brandon G. Bowman, Defendant.

No. 12110133

Justice Court of the Town of Webster, Monroe County

December 21, 2023

Unpublished Opinion

Sandra Doorley, District Attorney, Monroe County (Elizabeth D. Buckley and Kirby W. Leggett [awaiting admission] of Counsel), for plaintiff

James L. Riotto II, Esq., Rochester, for defendant

Thomas J. DiSalvo, J.

History of the Case

The defendant was charged with four Vehicle and Traffic violations on November 22, 2012, to wit: VTL § 1180 (b), Speeding going 87 miles per hour in a 55 mile per hour zone ^[1], VTL § 509 (3), operating in violation of restriction, VTL 509 (1), unlicensed operation and VTL 508 (8), failure to notify the Department of Motor Vehicles of a change in address. The uniform traffic informations served on the defendant were returnable in Webster Justice Court on December 18, 2012. However, the defendant's first appearance in this Court was on March 6, 2013, wherein the defendant was arraigned by me. At that time the Assistant District Attorney offered the defendant a plea deal, which would allow him to plead to a three point speed, i.e. 64 miles per hour in an 55 mile per hour zone and to being an unlicensed operator in full satisfaction of the original four charges. He was never represented by counsel in this matter. In any event, he plead to the said two charges on March 6, 2013. ^[2] The defendant was fined $45.00 with a surcharge of $85.00 on the speeding violation and $15.00 with a surcharge of $85.00 on the unlicensed operation violation. Neither of those fines were paid until April 29, 2021, some eight years later.

Facts & Arguments

On October 18, 2023 motions were filed with the Court by defense counsel requesting pursuant to CPL § 440.10, et seq. and pursuant to 440.10 (3) (c) ^[3] [sic] that convictions set out in the said uniform traffic informations be vacated. The People have filed an Affirmation in Opposition to Vacate the Convictions on November 14, 2023.However, as previously noted herein the defendant only plead guilty to the reduced speeding and unlicensed operation charges. The remaining charges having been satisfied.

Thus, some of the initial facts alleged by defense counsel are incorrect. The defendant's motions allege on information and belief that the defendant plead guilty to all of the violations to which he was charged. However, court records indicate that was not the case. In fact as stated the defendant plead to a reduced speeding ticket, i.e. a 3 point speed and operating without a license, a zero point ticket. The remaining charges were satisfied.

The defense further states that the Court failed to inform the defendant that a plea of guilty to the traffic violations was equivalent to a conviction after trial and that he would be both liable for a penalty but his license could be subject to suspension and revocation as prescribed by law in violation of VTL 1807 (1). However, The last paragraph of that sub-section as follows:

" The giving of the foregoing instructions by means of a statement printed in a noticeably distinct manner and in bold type in a size equal to at least twelve point type, upon a summons or ticket issued to a person charged with any such offense shall constitute compliance with the requirements of this section."

A review of the simplified traffic informations herein, which are also referred to as "e-tickets", state on their face as follows:

"SECTION 1807 OF THE VEHICLE AND TRAFFIC LAW PROVIDES THAT DEFENDANT, IN CERTAIN CASES, MUST BE INFORMED IN SUBSTANCE AS FOLLOWS

'A plea of guilty to this charge is equivalent to a conviction after trial. If you are convicted, not only will you be liable to a penalty, but in addition your license to drive a motor vehicle or motorcycle, and your certificate of registration, if any, are subject to suspension and revocation as prescribed by law.'"

Furthermore, the defendant complains that had he been aware of the consequences of his conviction, namely that his license could be put in jeopardy, he would have hired an attorney to negotiate a reduction of the charges. He further laments that he was not put in the same position as other defendants that were able to enter a plea bargain that would have resulted in a lesser charge or charges. Again, the defendant must have forgotten that the top charge was reduced from an eight point violation to a three point violation, that two charges were satisfied and that the remaining charge of VTL 509 (3), to which he plead, did not result in any points assessed to his driver license. Thus he did enter a plea bargain with the Monroe County District Attorney's Office on March 6, 2013, which means, to quote his motions papers, he was "... put in the same position as numerous other motorists appearing before the Court for purposes of negotiating a reduction in the traffic offense".

Defendant cites CPL § 440.10 (h) which states that a prior judgment of conviction can be vacated if "The judgment was obtained in violation of a right of the defendant under the constitution of this state or of the United States".In particular the defendant maintains that he was denied his right to obtain counsel. Defense counsel states in his affirmation that "Given the nature of the charge, the Defendant-Applicant had the right to request the assistance of counsel or request an adjournment to obtain counsel." First of all the defendant had approximately 108 days between the date of the offenses and date he first appeared in court to consult an attorney. Second of all this Court takes judicial notice of the procedure it has maintained for 22 years, wherein specifically at an arraignment of a traffic offense, the defendant is advised of the charges, the right to obtain an attorney and the right to a trial and the right to a supporting deposition from the police officer. This court then asks the defendant" Do you understand those rights?" A negative response would result in further explanation by the Court. Again, the court will take judicial notice that said procedure was in fact performed at the arraignment herein. Thus the defendant was never denied his right to obtain counsel. Nor has this court ever denied a defendant his or her right to an attorney.

Defense counsel cites as his authority People v. Rios, 9 Misc.3d 1, 801 N.Y.S.2d 113(App. Term, 2d Dept 9th & 10th Jud Dists 2005)In that case the court reversed the judgment of conviction to various traffic infractions, because the Court determined that the defendant therein was not adequately advised of his right to obtain an attorney. ^[4] That was not the situation herein. Thus defense counsel's reliance on Rios is misplaced. In any event this Court has previously held as follows:

"The court in Rios failed to reference CPL § 170.10 (1) (a), which concerns the arraignment on a simplified traffic information rather than a criminal prosecution. In the practice commentaries for that statute it states that

'Turning to the arraignment procedure itself, the basic statutory requirement is personal appearance by the defendant, but this is excusable in two situations where the court has discretion to dispense with same (see subd. 1). The first exception (1[a]) encompasses the vast majority of cases; the many millions of charges prosecuted by simplified information - e.g., traffic infractions. Where the substantive body of law that defines an offense charged in a simplified information permits a plea of guilty by mail, the defendant may offer to waive arraignment, plead guilty and be sentenced through communications by mail. Thereupon the court may proceed as if the defendant had been convicted in open court and may notify defendant of the fine or penalty imposed. Or, the court may deny the application and notify defendant to appear at a stated time and place for arraignment in person. (Donnino, Practice Commentaries, McKinney's, CPL § 170.10)'"

Thus the defendant could have simply plead guilty to the original charge by mail, been assessed a fine and surcharge, without his ever having appeared in court and being advised of his said

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