People v. Knack
Citation | 128 A.D.2d 307,516 N.Y.S.2d 465 |
Parties | The PEOPLE, etc., Respondent, v. Daniel T. KNACK, Appellant. |
Decision Date | 01 June 1987 |
Court | New York Supreme Court Appellate Division |
Peter Panaro, Massapequa (Gregory R. Kuziw, of counsel), for appellant.
Denis Dillon, Dist. Atty., Mineola (Anthony J. Girese and Gary H. Nurkin, of counsel), for respondent.
Before BRACKEN, J.P., and NIEHOFF, EIBER and SULLIVAN, JJ.
The question before us is whether there is authority to permit a court to suppress, on motion, evidence of a prior misdemeanor conviction where that prior conviction enhances a subsequent charge to felony status. The County Court answered the question "no", and we agree.
On January 17, 1984, in the District Court, First District, Suffolk County, the defendant pleaded guilty to (1) driving while intoxicated, as a misdemeanor, in violation of Vehicle and Traffic Law § 1192(2), and (2) driving without a license. On March 2, 1984, he was sentenced to a term of three years' probation.
On December 9, 1984, he was arrested in Nassau County and charged with criminal possession of a controlled substance in the seventh degree, in violation of Penal Law § 220.03, and driving with a prohibited amount of alcohol in his blood, as a felony, in violation of Vehicle and Traffic Law § 1192(2).
Vehicle and Traffic Law § 1192(5) provides, in relevant part, that a person who operates a vehicle in violation of Vehicle and Traffic Law § 1192(2) after having been previously convicted of a violation of that same provision within the preceding 10 years, shall be guilty of a felony.
By notice of motion and attorney's affirmation dated March 29, 1985, the defense counsel moved for an order suppressing evidence of the defendant's prior conviction of violating Vehicle and Traffic Law § 1192(2), so as not to elevate the present charge of violating Vehicle and Traffic Law § 1192(2) to a felony. The motion was made on the ground that the defendant's prior conviction of violating Vehicle and Traffic Law § 1192(2), upon his plea of guilty, was constitutionally invalid for the purpose of raising another offense of driving while intoxicated to the status of a felony because the allocution was invalid and insufficient, and the defendant had ineffective assistance of counsel at both the plea and the sentencing on the prior charges.
CPL 200.60(1) and (2) provide that when the fact that the defendant has been previously convicted of an offense raises an offense of lower grade to one of higher grade and thereby becomes an element of the latter, an indictment for such an offense must be accompanied by a special information, filed by the District Attorney with the court, charging that the defendant was previously convicted of the specified .
offense. CPL 200.60(3) further provides that:
On April 16, 1985, the Grand Jury returned an indictment charging the defendant with two counts of operating a motor vehicle while under the influence of alcohol as a felony and one count of criminal possession of a controlled substance in the seventh degree. That same day, the District Attorney filed a special information pursuant to CPL 200.60(2) regarding the defendant's prior conviction for violating Vehicle and Traffic Law § 1192(2).
On June 28, 1985, an order was entered denying the defendant's motion to suppress evidence of his prior misdemeanor conviction for operating a motor vehicle while under the influence of alcohol. The court in its decision concluded that the defendant's remedy was a CPL 440.10 motion to vacate the prior conviction.
The defendant did make a CPL 440.10 motion in the District Court, First District, Suffolk County, to vacate his prior conviction. However, that motion was denied by an order dated September 17, 1985, and that order was affirmed by the Appellate Term for the Ninth and Tenth Judicial Districts in an order dated September 22, 1986.
On October 10, 1985, the defendant withdrew his plea of not guilty and entered a plea of guilty to operating a motor vehicle while under the influence of alcohol as a felony, in satisfaction of the entire Nassau County indictment. On November 8, 1985, he was sentenced to 60 days imprisonment, five years probation, concurrent with the jail term, revocation of his driver's license, and a fine.
This appeal brings up for review the denial of the defendant's motion to suppress the use of his prior conviction to enhance the present charge to felony status.
The defendant argues that his motion to suppress should have been granted, and that he is not limited to the remedy of a motion to vacate the prior judgment of conviction pursuant to CPL 440.10. He further contends that upon a showing that his prior conviction entered on his plea of guilty was obtained in violation of his constitutional rights, and that his plea was not knowing and voluntary, the court is empowered to suppress use of that conviction.
In making this argument, the defendant relies heavily upon the case of People v. Sirianni, 109 Misc.2d 781, 440 N.Y.S.2d 988, revd. 89 A.D.2d 775, 453 N.Y.S.2d 485. In Sirianni, the defendant had been charged with the crime of driving while intoxicated as a felony in violation of Vehicle and Traffic Law § 1192(5). The evidence adduced upon a hearing was that the defendant had been previously convicted of driving while intoxicated as a misdemeanor. The prior conviction was upon an uncounseled plea of guilty. The County Court, Cattaraugus County, granted that branch of the defendant's omnibus motion which sought to suppress any evidence of the prior conviction of driving while intoxicated. The court granted the motion on the ground that absent demonstrated knowledge on the part of the defendant, advice of the force and effect of an initial conviction of driving while intoxicated upon a subsequent conviction of the same crime should have been given by the court at the time that counsel was waived and a plea of guilty entered.
Upon appeal, the Appellate Division, Fourth Department, reversed the determination Assuming, arguendo, that the defendant is correct in his conclusion that the Fourth Department has impliedly held that a motion to suppress is a proper procedural vehicle available to one in a position such as his, our analysis of the law leads us to a contrary conclusion.
of the County Court. In doing so, the court pointed out that it was enough that the defendant be fully informed of the punishment for the crime he had already committed; it need not be anticipated that he will again disobey the law and commit additional crimes. In reaching this determination, the Fourth Department did not expressly pass upon the propriety of the defendant's use of a motion to suppress evidence of a prior conviction as a means of preventing his current charge from being elevated to felony status.
In addition to the Sirianni Court, several other courts have dealt with the issue confronting us, with differing results.
Thus, in People v. Ryan, 127 Misc.2d 138, 485 N.Y.S.2d 933, the County Court, Westchester County, concluded that a suppression motion would lie. There, the defendant was arrested and convicted of driving while intoxicated as a misdemeanor. He filed a notice of appeal from that judgment, but the appeal was dismissed for failure to perfect it. Subsequently, he was arrested again for driving while intoxicated, and this time was charged with a felony due to his prior conviction. Thereafter, he made a CPL 440.10 motion to vacate the prior conviction as violative of his due process right to confrontation, but that motion was denied. He then made a pretrial motion to suppress the special information which alleged his prior conviction, but that motion was also denied, on the ground that it was a "collateral attack" on the prior conviction and that his proper remedy would have been a timely appeal (People v. Ryan, supra, at 140, 485 N.Y.S.2d 933). At the trial, the defense counsel moved to suppress the special information at the time it was offered on the District Attorney's direct case, on the ground that the prior conviction was violative of the defendant's due process rights.
Citing Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169, reh. denied 447 U.S. 930, ...
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