Albin & Richman, Garden City (Lee Albin of counsel), for defendant.
Dwight D. Kraemer, Village Attorney, Westbury, for plaintiff.
Thomas F. Liotti, J.
On February 26, 2001, this Court was presented with an order
to show cause, requesting that the Village of Westbury, by its prosecutor, show cause why a plea of guilty for the defendant, George G. Woodard, should not be vacated and also enjoining the New York State Department of Motor Vehicles from enforcing a license revocation rendered on January 13, 2001 against the defendant. This Court signed the order to show cause and directed that the defendant, through his counsel, obtain copies of the plea and sentencing minutes for this proceeding. The Court also signed a temporary restraining order, nunc pro tunc, to January 13, 2001, enjoining the Department of Motor Vehicles and restraining it from revoking the defendant's license or taking any other action in connection with same during the pendency of these proceedings. The order to show cause originally had a return date of February 22, 2001 and that was adjourned to March 7, 2001, at which time it was submitted without legal argument.
The defendant has alleged that he received a simplified traffic information in the Incorporated Village of Westbury for disobeying a steady red signal, a violation of Vehicle and Traffic Law § 1111 (d) (1), on March 13, 2000 at approximately 8:30 P.M . This particular offense is a moving violation and carries three points on a license, if convicted, which are then imposed administratively by the Department of Motor Vehicles. The defendant pleaded to a reduced and amended charge on October 24, 2000, to a violation of Vehicle and Traffic Law § 1110 (a), failure to obey a traffic control device, which carried with it two points rather than three. Fines of $100 and a surcharge of $30 were imposed. The reduced plea was the product of plea negotiations between the defendant's counsel, Lee Albin, Esq., of Albin & Richman, and the Village Attorney, Dwight Kraemer. In an affidavit filed with the Court and signed by Mr. Woodard, the defendant indicated:
" During the course of negotiations I neglected to advise my attorneys that at the time of the issuance of the summons I was driving with a restricted license which was issued on February 15, 2000, for a period of six months. This [sic] facts was [sic] not related to counsel for the Village, so that both counsel for the Village and my attorney were primarily focusing upon the amount of points that I would have since the prime object of negotiating was for me to be assured that my license would remain intact if I pleaded guilty to the summons.
" I pleaded guilty with the understanding that my
license would not be suspended or revoked. It was a mistake in failing to convey this information to my attorney or to the Village Attorney for had they known, they would not have advised to enter a plea of guilty to the summonses."
The defendant then indicated in his affidavit that he had received an order of revocation from the Department of Motor Vehicles on January 13, 2001.
The plea allocution and sentence for the defendant were as follows:
" THE COURT: George Woodard? Counsel, notice of appearance. Mr. Albin, right?
" MR. ALBIN: Yes. How are you?
" THE COURT: How are you? I haven't seen you for a while. How are you doing? Everything is okay?
" MR. ALBIN: Trying to stay young, not easy.
" THE COURT: You have always been young. I know you for a long time.
" Mr. Kraemer tells me, Mr. Albin, you have had an opportunity to conference the case with him this morning and as a result of those discussions, Mr. Kraemer indicates his offer to let your client plead guilty to a reduced and amended charge.
" He was originally charged with disobeying a red steady signal light, a violation of Vehicle and Traffic Law Section 1111(d)(1), which if convicted or, if he plead guilty to that, he would have received three points on his license for the first offense, the fine would be a maximum of $100, there is no minimum on that. Second offense, $200, no minimum. Third offense, $300, and no minimum. All of those would have to have occurred within 18 months of each other. There is a mandatory surcharge on that particular offense of $30, together with possible jail sentences of 15 days on the first offense, 45 on the second offense, and 60 days on the third.
" I mention that, Counsel, not to terrorize you, but merely to let your client know what a terrific job you have done for him this morning.
" Mr. Woodard, do you understand ...