People v. Wheaton

49 Misc.3d 378

17 N.Y.S.3d 586

2015 N.Y. Slip Op. 25195

The PEOPLE of the State of New York,

v.Todd R. WHEATON, Defendant.

County Court, Seneca County, New York.

June 15, 2015.

James Riotto for defendant.

DENNIS F. BENDER, J.

The above named defendant was sentenced by this Court on February 10, 2004, upon his plea of guilty to one count of Driving While Intoxicated as a class E felony [VTL sections 1192(2) & 1193(c)(i) ]. Pursuant to his moving papers, the defendant's driver's license was revoked in 2013. The revocation was based upon 15 NYCRR section 136.5(b), which was enacted on September 22, 2012. The defendant claims this is an ex post facto law and that his conviction must be vacated because “[t]he judgment was obtained in violation of a right of the defendant under the constitution of this state or of the United States”. CPL section 440.10(1)(h). In support, the defendant cites People v. Luther, 41 Misc.3d 185, 970 N.Y.S.2d 674 [Justice Ct., Town of E. Rochester, Monroe Cty. 2013], aff'd Monroe Cty. Ct. [Sept. 10, 2014].

The matter was deemed to be on submission on June 8, 2015. Having reviewed the moving papers and considered the issues raised, I now find and decide as follows.

I do not agree with the Luther Court that CPL section 440.10 is applicable. To hold that the failure to advise the defendant of a consequence then not in existence somehow renders the judgment of conviction to have been obtained in violation of due process or any other constitutional right defies both logic and common sense.¹ This is not to say that 15 NYCRR Article 135 does not violate the constitutional proscription against ex post facto laws. Such is not an issue this Court must reach, however. The defendant's grievance lies with the enactment and enforcement of the new regulation, not the manner of his conviction.

In any event, “[t]he court has no obligation to explain to defendants who plead guilty the possibility that collateral consequences may attach to their criminal convictions' (People v. Catu, 4 N.Y.3d 242, 244, 792 N.Y.S.2d 887, 825 N.E.2d 1081 [2005]; see generally People v. Jones, 118 A.D.3d 1360, 1361, 988 N.Y.S.2d 316 [2014] ). The Court of Appeals has expressly stated that the loss of a driver's license' is a collateral consequence of a conviction (People v. Ford, 86 N.Y.2d 397, 403, 633 N.Y.S.2d 270, 657 N.E.2d 265 [1995], and we have accordingly held that a court's failure to disclose that consequence during the pleas colloquy does not warrant vacatur of the plea' (People v. Gerald, 103 A.D.3d 1249, 1250, 959 N.Y.S.2d 362 [2013] ).” People v. Trathen, 121...