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Application of Arcuri

Supreme Court of New York, Appellate Division

May 11, 1955

Application of Vito ARCURI, Petitioner-Appellant, for an order to review the proceedings of James R. Macduff, Motor Vehicle Commissioner of the State of New York, Respondent, pursuant to Article 78 of the Civil Practice Act of the State of New York.

Proceedings in the matter of an application under Civil Practice Act, § 1283 et seq., for an order to review the State Motor Vehicle Commissioner's proceedings in revoking petitioner's chauffeur's license because of three convictions of speeding. From an order of the Supreme Court, Special Term, Montgomery County, Felix J. Aulisi, J., dismissing the petition, petitioner appealed. The Appellate Division, Halpern, J., held that a magistrate, before whom second conviction for violating village speed ordinance took place after effective date of statutory amendment requiring magistrate to warn person arraigned on charge of violating law or ordinance respecting operation of motor vehicles that, if convicted, his driver's license is subject to suspension or revocation, before accepting plea of guilty, owed duty to give petitioner such warning, and that petitioner was fully responsible for consequences of his plea of guilty, resulting in third conviction for violating Vehicle and Traffic Law, though magistrate, after reading required warning, informed petitioner that such plea would not result in revocation or suspension of license on erroneous assumption that conviction would be only second conviction because license showed only one prior conviction.

Order reversed and matter remitted to Special Term.

Page 18

[141 N.Y.S.2d 3] Saverio M. Flemma, Utica, for petitioner-appellant (John E. Flemma, Utica, of counsel).

Jacob K. Javits, Atty. Gen., for respondent (Henry S. Manley, Sol. Gen., Albany, Philip J. Fitzgerald, Asst. Atty. Gen., of counsel).

Before FOSTER, P. J., and COON, HALPERN, IMRIE and ZELLER, JJ.

HALPERN, Justice.

The Commissioner of Motor Vehicles has revoked the petitioner's chauffeur's license, upon the ground that the petitioner had been convicted of speeding upon three occasions within a period of eighteen months, § 71, subd. 2, par. (c), Vehicle and Traffic Law. The first conviction took place on September 2, 1953, the second conviction on October 6, 1953 and the third on April 6, 1954. The first conviction was for a violation of section 56 of the Vehicle and Traffic Law; no question is raised as to the validity of that conviction and the propriety of considering it as one of the three convictions under the cited provision of the Vehicle and Traffic Law.

The second conviction was for a violation of a local ordinance forbidding speeding in excess of specified limits. As to this conviction, it is the contention of the petitioner that the Justice of the Peace did not comply with section 335-a of the Code of Criminal Procedure in that he failed to instruct the petitioner in accordance with the provisions of that section that, upon conviction, his license to drive and certificate of registration would be subject to suspension and revocation as prescribed by law. The magistrate states in an affidavit submitted in support of the [141 N.Y.S.2d 4] petition that he was under the impression at the time that a conviction

Page 19

for a violation of a village ordinance would have no effect upon the operator's license and that he so informed the petitioner. However, the certificate of conviction filed by the magistrate with the Commissioner of Motor Vehicles gives the answer ‘ Yes' to the question in the printed form: ‘ Upon arraignment, and before accepting any plea, did you give the accused the information required by Code of Criminal Procedure § 335-a?’ In an affidavit submitted by the respondent, the magistrate states that before he accepted the petitioner's plea of guilty, he advised him that his license might be suspended or revoked upon his conviction. However in a supplemental affidavit procured by the petitioner, he states that ‘ I am uncertain as to whether I read or informed the said Vito Arcuri of the contents of section 335-a of the Code of Criminal Procedure and it is my belief that I did not’ .

The third conviction was for excessive speed in violation of section 56 of the Vehicle and Traffic Law. It is undisputed that the Justice of the Peace read the warning prescribed in section 335-a to the petitioner but it appears that the petitioner's license showed only one prior conviction and, upon the erroneous assumption that a conviction upon the charge before him would only be a second conviction, the magistrate informed the petitioner that ‘ a plea of guilty to the charge of speeding would not result in the revocation or suspension’ of the petitioner's license. The petitioner contends that this statement vitiated the effect of the reading of section 335-a and that he pleaded guilty only because he believed that his license would not be affected by the conviction.

After the petitioner received notice from the Commissioner that his license had been revoked because of three convictions for speeding, the petitioner brought this proceeding to annul the Commissioner's determination and, in his petition and accompanying affidavits, presented his contentions with respect to the alleged failure of the magistrates to give proper warning upon the occasion of the second and third convictions.

The Special Term dismissed the petition without prejudice and affirmed the order of the Commissioner on the ground that the certificates of conviction before the Commissioner on their face showed compliance with the statute and that ‘ he was bound to act as he did and the petitioner's remedy is by way of a coram nobis proceeding to set aside said conviction in the court which made it.’

Upon the argument of the appeal in this court, the Attorney General took the position that the ...


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