People v. Luther

• Decision Date: 30 June 2013
• Citation: 2013 N.Y. Slip Op. 23223,970 N.Y.S.2d 674,41 Misc.3d 185
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Daniel C. LUTHER, Defendant.
• Court: New York Justice Court

41 Misc.3d 185

970 N.Y.S.2d 674

2013 N.Y. Slip Op. 23223

The PEOPLE of the State of New York, Plaintiff,

v.Daniel C. LUTHER, Defendant.

Justice Court, Town of E. Rochester,

Monroe County.

June 30, 2013.

TERRENCE C. BROWN–STEINER, J.

Decision and Order

The matter before this Court is the defendant's CPL § 440.10 motion to vacate a prior plea of guilty to Driving While Intoxicated (V & T § 1192(3)). For the reasons set forth herein, the defendant's motion is granted, the guilty plea vacated, and the matter restored to the trial calendar for further proceedings.

Facts and Posture of the Case

On August 5th 2012 the defendant was charged by misdemeanor complaint alleging a violation of Vehicle and Traffic Law § 1192(3), driving while intoxicated. The defendant was also charged with multiple traffic violations (V & T §§ 1128, 1163 and 1194). It is not disputed that the defendant had two (2) prior DWI offenses: one in 1990 and one in 1993.

The matter proceeded through discovery and motion practice. On February 11th 2013 the defendant plead guilty to common law DWI, V & T Law § 1192(3), in full satisfaction of all pending charges.

Immediately following his plea, and as part of the terms of the plea bargain, a minimum sentence and minimum fines were imposed. The sentence included: (a) a mandatory six (6) month suspension of his driver's license; (b) mandatory attendance at the Victim Impact Panel; (c) the installation of an ignition interlock device to remain for a period of six (6) months, and (d) a minimum local fine of $500.00 plus the mandatory New York State surcharge of $400.00.

CPL § 440.10 Motion

One month after the original plea, on or about March 14th 2013, with new counsel, the defendant moved to set aside the plea and judgment of conviction pursuant to Criminal Procedure Law § 440.10 et seq. The defendant argued that at the time of the plea on February 11th 2013, he reasonably expected to be able to apply to the Commissioner of the Department of Motor Vehicles for restoration of his driver's license after the six (6) month suspension. The defendant indicated that at the time of the plea he, upon advice of counsel, relied upon the DWI suspension regulation in effect at that time, to wit: DMV Emergency Regulation § 136.5(b)[5].

New York's State Administrative Procedure Act § 202 generally requires a State agency promulgating proposed regulations to publish such regulations in the state registry for a period of 45 days (and in some cases conduct public hearings) to allow for notice and public comment. SAPA § 202. The agencies are also authorized, at times, to issue emergency regulations without the 45 day waiting period. SAPA § 202(6) [“ Notice of emergency adoption. (a) Notwithstanding any other provision of law, if an agency finds that the immediate adoption of a rule is necessary for the preservation of the public health, safety or general welfare and that compliance with the requirements of subdivision one of this section would be contrary to the public interest, the agency.”]. See Marcy Center v. Coughlin, 60 N.Y.2d 14, 20, 466 N.Y.S.2d 668, 453 N.E.2d 1085 (1983) [“The standard of review is not whether we or the courts below would conclude that a limited emergency exists; it is rather whether the determination by the Commissioner of Correctional Services that such an emergency exists was irrational or arbitrary or capricious.”].

“Emergency” regulations, put into effect without public comment, are often controversial and subject to judicial challenge. See, e.g., NRG Energy, Inc., v. Crotty, 18 A.D.3d 916, 795 N.Y.S.2d 129 (3rd Dep't, 2005);Law Enforcement Officers Union v. New York, 229 A.D.2d 286, 655 N.Y.S.2d 770 (3rd Dep't, 1997) and NYS School Boards Association v. New York Board of Regents, 210 A.D.2d 654, 619 N.Y.S.2d 837 (3rd Dept., 1994). Issues of proper promulgation of regulations are particularly pertinent to criminal prosecution with inherent issues of notice to defendant. People v. Bush, 134 A.D.2d 871, 521 N.Y.S.2d 603 (4th Dep't 1987). The power to issue emergency regulations is subject to judicial review. Hague Corp. v. Empire Zone Designation Board, 96 A.D.3d 1144, 947 N.Y.S.2d 622 (3rd Dept., 2012) [“Initially, we are unpersuaded by petitioner's contention that DED violated the State Administrative Procedure Act (hereinafter SAPA) in adopting the regulations on an emergency basis without first identifying the circumstances necessitating such and providing the public with an opportunity to comment.”].

The regulation at issue in this case, DMV Emergency Regulation § 136.5, provided for multiple periods of mandatory and discretionary ineligibility to hold a driver's license, and eventually ability to apply for a restored driver's license. As applicable to this case, the defendant claimed reliance upon § 136.5 subdivision five (5). Subdivision five (5) provided, that if

“the person has two (2) alcohol or drug related convictions or incidents in any combination within 25 years preceding the date of the revocable offense, then the commissioner may in his or her discretionapprove the application after the minimum statutory period is served”

§ 136.5(b)[5]. In this case, the defendant's “minimum statutory period” was six (6) months.

As the regulation appeared to exclude the present offense [“preceding the date of the revocable offense”], and the defendant had two prior offenses, he fell within the provisions of § 136.5(5).Counsel for defendant argued that that the emergency regulation was broadly criticized by defense counsel throughout the State for ambiguity and vagueness, and the meaning of the language of “preceding the date of the revocable offense”. In apparent response to criticism for lack of clarity, and/or other reasons not known by the Court, the Commissioner promulgated a new and superseding regulation.

The regulation was amended on February 22nd 2013 ¹ and immediately implemented eleven (11) days after the defendant's plea.² While the regulation was promulgated after the plea, its apparent effect was immediate. The new § 136.5 regulation removed the “preceding the date” language and clearly stated the consequence of a third conviction, plea, or serious offense. A third DWI plea, conviction or serious offense within 25 years would result in a period of ineligibility well beyond the six (6) month mandatory suspension.

The February 22nd regulation provided:

(4) (i) the person has three or four alcohol- or drug-related driving convictions or incidents in any combination within the 25 year look back period but no serious driving offenses within the 25 year look back period and (ii) the person is not currently revoked as the result of an alcohol- or drug-related driving conviction or incident, then the Commissioner shall deny the application for at least two years, after which time the person may submit an application for relicensing. Such waiting period shall be in addition to the revocation period imposed pursuant to the Vehicle and Traffic Law. After such waiting period, the Commissioner may in his or her discretion approve the application, provided that upon such approval, the Commissioner shall impose an A2 restriction, with no ignition interlock requirement, for a period of two years. If such license with an A2 restriction is later revoked for a subsequent alcohol- or drug-related driving conviction or incident, such person shall thereafter be ineligible for any kind of license to operate a motor vehicle.

§ 136.5[4](i) (emphasis supplied). As the defendant's plea resulted in a third DWI violation, he would be ineligible to apply for a new license until two years after the six month revocation.

Defendant argued, persuasively, that the new regulation, not in effect at the time of the plea, imposed serious additional consequences upon his client. Defendant argued “as a result of this change, after the addition of the statutory waiting period of six months, the defendant will have to endure another two year waiting period after which he will to endure at least two (2) years of an A2 restriction.” Fiandach Affirmation at paragraph 20.

The trial court's authority to vacate a plea, verdict or judgment is expressly limited by statute. CPL § 440.10 empowers the court to vacate a plea, where appropriate, only if certain specified elements are found. At motion argument, the ADA forcefully argued that the defendant did not meet any of the requirements of this statute. The ADA also stated, correctly, that the plea negotiations did not include any estimated or promised period of ineligibility beyond the mandatory six month revocation.

Upon review of CPL § 440.10, this Court finds that there is a valid basis to set aside the plea pursuant to § 440.10(h) which provides that a judgment may be set aside by the trial court if such judgment was obtained “in violation of a right of the defendant under the constitution of this state or of the United States.” CPL § 440.10(h).

This Court finds that the regulation change promulgated after the plea but retroactively ³ applied, violated the defendant's right to due process, or at least raised issues sufficient to warrant the granting of the CPL § 440.10 motion allowing the defendant to vacate his prior plea. A credible claim can also be made that the retroactive application of the regulation violates the defendant's right to the equal protection of the laws and substantive due process.

It is clear that the right to drive/possession of a driver's license is a privilege and not a right. Papaioannou v. Kelly, 14 A.D.3d 459, 788 N.Y.S.2d 378 (1st Dep't, 2009). The right to travel is a component of the recognized right to liberty. Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969) (concurring opinion) [“The constitutional right to travel from one State to another has been firmly established and repeatedly recognized.” United States v. Guest, 383 U.S. 745, 757, 86 S.Ct. 1170, 16 L.Ed.2d 239.]. As a motor vehicle is often...