People v. Olecski

• Decision Date: 05 September 2017
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Fallon OLECSKI, Defendant.
• Court: New York Criminal Court

57 Misc.3d 698
59 N.Y.S.3d 888

The PEOPLE of the State of New York, Plaintiff,
v.
Fallon OLECSKI, Defendant.

Criminal Court, City of New York, New York County.

Sept. 5, 2017.

59 N.Y.S.3d 890

Cascione, Purcigliotti & Galluzzi, P.C., by Thomas. G. Cascinoe, Esq., for the Defendant.

Cyrus R. Vance, Jr., New York County District Attorney, by A.D.A. Monica Narang, for the People.

STEVEN M. STATSINGER, J.

57 Misc.3d 700

Defendant was charged with Operating a Motor Vehicle While Intoxicated, VTL § 1192(2) and (3), and Operating a Motor Vehicle While Ability Impaired, VTL § 1192(1). On October 26, 2016, she pled guilty to Operating a Motor Vehicle While Ability Impaired. The Court sentenced defendant to a one-year conditional discharge,

59 N.Y.S.3d 891

the conditions being that she pay a fine and surcharge, attend the Impaired Driver's Program and abide by a 90–day license suspension.

The defendant now moves for an order pursuant to CPL § 440.10(1)(h) vacating the judgment on the ground of ineffective assistance of counsel. In a case of apparent first impression, the Court concludes that defense counsel's erroneous advice regarding defendant's ability to obtain a conditional license after her conviction constituted ineffective assistance of counsel. Accordingly, and for the reasons detailed below, defendant's motion is GRANTED. The accusatory instrument is restored to its pre-pleading status on the Part E Calendar.

I. Introduction

Both defendant and the attorney who represented her at the plea assert that defense counsel told the defendant that if she pled guilty she would be able to obtain a conditional license. This advice was incorrect. The DMW's 25–year "look-back" rule, promulgated in 2013, rendered defendant ineligible for a conditional license, 15 NYCRR § 134.7(a)(11)(i), and also triggered an automatic license revocation lasting five additional years.¹ 15 NYCRR 136.5(b)(3)(ii). Defense counsel asserts

57 Misc.3d 701

that he was unfamiliar with these rules at the time he advised defendant to plead guilty. Since counsel gave the defendant incorrect advice regarding the relicense consequences of her guilty plea, and defendant has convincingly established that she would not have pled guilty but for that advice, she is entitled to relief for ineffective assistance of counsel.

Defendant further argues that, because the five-year revocation of her license was a direct consequence of the plea, the Court was required to advise her of this prior to accepting the plea. As to this, the Court disagrees. The five-year revocation is a collateral consequence, not a direct consequence, of the guilty plea, and a court need not inform a defendant of the collateral consequences of a plea of guilty, other than immigration consequences. People v. Peque, 22 N.Y.3d 168, 184, 980 N.Y.S.2d 280, 3 N.E.3d 617 (2013). Accordingly, the Court was under no obligation to advise the defendant about the actions that The DMV would take, and the motion to vacate the judgment is denied on this particular theory.

II. Legal Discussion

Defendant moves to vacate judgment under CPL 440.10(1)(h), which provides for relief where the "judgment was obtained in violation of a right of the defendant under the constitution of this state or of the United States." Where a defendant has received in effective assistance of counsel, she is entitled to relief under this section. Cf. People v. Maxwell, 89 A.D.3d 1108, 933 N.Y.S.2d 386 (2d Dept.2011).

A. Introduction

The defense correctly argues that counsel's incorrect advice about the relicensing consequences of the guilty plea constitutes ineffective assistance of counsel under both the federal and state constitutions.

B. Federal Standard

A defendant relying on federal constitutional law "to challenge the voluntary and intelligent character of [her] guilty plea on the ground of ineffective assistance of counsel must establish that

59 N.Y.S.3d 892

defense counsel's advice was not within the standard set forth in Strickland v. Washington. " People v. McDonald, 1 N.Y.3d 109, 113, 769 N.Y.S.2d 781, 802 N.E.2d 131 (2003), citation omitted. Under Strickland, the defendant must show, first, that counsel's performance was deficient—or "unreasonable"—and, second, that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 690, 691–92, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Where the defendant

57 Misc.3d 702

has pled guilty, in order to satisfy the prejudice requirement, she "must show that there is a reasonable probability that, but for counsel's errors, [she] would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).

1. Counsel's Performance Was Deficient

Defendant has met the first prong of Strickland. Defense counsel admits that he incorrectly advised the defendant that accepting a plea of guilty to VTL 1192(1) would be the "only path" to obtaining conditional license and retaining her driving privileges. Cascione Aff. at ¶ 17. When he provided her with this incorrect advice, he was unaware of the DMV's 25–year "look-back" rule, under which it was in fact impossible for her to obtain a conditional license, 15 NYCRR § 134.7(a)(11)(i), and which also caused the DMV to revoke her license for five additional years. 15 NYCRR 136.5(b)(3)(ii). Cascione Aff. at ¶¶ 15–16, 18–20.² See McDonald, 1 N.Y.3d at 114–15, 769 N.Y.S.2d 781, 802 N.E.2d 131 ("affirmative misstatements by defense counsel" about a collateral consequence "may, under certain circumstances, constitute ineffective assistance of counsel"). In truth, only an acquittal after trial could have prevented the consequences of the 25–year "look-back" rule.

While it appears that no court has considered an ineffectiveness claim based on counsel's ignorance of these relicensing regulations, People v. Luther, 48 Misc.3d 699, 12 N.Y.S.3d 491 (County Ct., Monroe County 2014), examined this same problem through a different lens, and granted the defendant relief under CPL § 440.10. There, the issue was not that defense counsel gave incorrect advice about the relicensing consequences of a guilty plea. It was that, soon after the defendant's guilty plea, the regulations changed. Id. Specifically, defendant pled guilty to driving while intoxicated on February 11, 2013. Id. at 700, 12 N.Y.S.3d 491. His sentence included a six-month license revocation. Id. Just eleven days later, however, on February 22, 2013, the current relicensing regulations went into effect, rending him ineligible

57 Misc.3d 703

to reapply for a driver's license for five years after the six-month revocation. Id. A Town Court Justice granted defendant's motion for relief under CPL § 440.10(1)(h), and the County Court affirmed, describing defendant's experience as both "an affront to the notion [of] due process" and "patently unfair." Id. at 702, 12 N.Y.S.3d 491.³

59 N.Y.S.3d 893

Luther, in dicta, also observes that an attorney's failure to advise a client about this particular consequence might constitute ineffective assistance: "[B]ut for the revocation consequences at issue being publicly unknown until after defendant's plea and sentencing, the remedy of vacatur on the ground of ineffective assistance may have lied for counsel's failure to disclose." Id. at 703, 12 N.Y.S.3d 491. While the Court here need not reach the question whether defendant's due process rights were implicated by her unexpected inability to obtain a conditional license, it agrees that defense counsel's incorrect advice on the question was professionally unreasonable under Strickland.

2. Defendant Was Prejudiced

Where a defendant asserts prejudice, "[t]he sufficiency of the defendant's factual allegations as to prejudice should be evaluated with reference to the face of the pleadings, the context of the motion and defendant's access to information." McDonald, 1 N.Y.3d at 115, 769 N.Y.S.2d 781, 802 N.E.2d 131, citation omitted. Here, defendant has made a showing of prejudice.

In her affidavit, defendant explains that she is a dancer, and her main concern was that she be able to continue to drive to work. Olecksi Aff. ¶¶ 4, 11. Defendant lives on Staten Island and does not have readily available public transportation. Id. Defense counsel, for his part, has averred that he informed the defendant that a plea to VTL § 1192(1) was her only path to a conditional license. Cascione Aff. ¶¶ 8, 16–17. Defendant specifically recalls that her counsel told her that "he had checked the DMV website that very morning and no additional penalty would be added because my prior offenses were too far in the past." Olecksi Aff. ¶ 14. See also Cascione Aff. ¶ 15 (confirming this fact,...