New York Justice Court, Town of E. Rochester, Monroe County
June 30, 2013
The PEOPLE of the State of New York, Plaintiff,
Daniel C. LUTHER, Defendant.
DECISION AND ORDER
[970 N.Y.S.2d 675]
TERRENCE C. BROWN-STEINER, J.
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 [970 N.Y.S.2d 676] 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).
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 discretion [970 N.Y.S.2d 677] approve the application after the minimum statutory period is served"
§ 136.5(b). 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  and immediately implemented eleven (11) days after the defendant's plea.  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(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.
[970 N.Y.S.2d 678] 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  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 required to travel, there are logical limits to the classification of a driver's license as a privilege. Such issues are not before this Court.
It is clear that this Court should not intrude upon the province of the Commissioner of the Department of Motor Vehicles (or other state agency) unless such agency discretion is exercised in an arbitrary and capricious manner. See, e.g. Funes v. New York State Department of Motor Vehicles, 2013 N.Y. Slip Op. 31082(U), 2013 WL 2282849 (Sup.Ct., N.Y. Co., 5/13/1) (discussing 15 NYCRR § 136.5) See Arrocha v. Board of Education, 93 N.Y.2d 361, 690 N.Y.S.2d 503, 712 N.E.2d 669 (1999) [Board of Education case]. This Court is not being asked here to override or vacate a decision of the DMV Commissioner. The right(s) of the defendant that were violated in this case, however, are rights separate from the privilege to drive.
Ex Post Facto Effect of Regulation
This Court finds that the defendant is entitled to vacate the plea based upon the ex post facto character and retroactive effect of the amended DMV regulation § 136.5.
States are constitutionally prohibited from enacting ex post facto laws. United States Constitution in article I, § 10 clause 1. Such constitutional rights and [970 N.Y.S.2d 679] protections have been expressly considered by New York's highest court in DWI cases. See, e.g., People v. Ballman, 15 N.Y.3d 68, 904 N.Y.S.2d 361, 930 N.E.2d 282 (2010) (Ontario County Case, affirming A.D. vacutor of felony charge and affirming Fourth Department decision [" Treating convictions' as prior out-of-state convictions also avoids any potential ex post facto problem arising from the People's proposed interpretation of the statute." ] ); and People v. Maldonado, 173 Misc.2d 612, 661 N.Y.S.2d 937 (Sup.Ct., Nassau, Co., 1997).
There are many ways that a state law or regulation can create ex post facto consequences. The classic example is a law that makes conduct that was lawful at the time engaged in retroactively unlawful. That is not the case here. DWI was illegal at the time of this offense. An additional category of ex post facto laws is a law that imposes additional and harsher consequences than existed at the time of the offense. See Dillon v., Coughlin, 143 Misc.2d 207, 539 N.Y.S.2d 880 (Sup.Ct., Albany Co., 1989) [" Particularly in the area of criminal law, statutes which condemn an act innocent when done, or increase the punishment for previously committed crimes, have always been regarded as oppressive and prohibited, as ex post facto laws, by the Federal Constitution. (U.S. Const., art. I, § 10; see, e.g., People ex rel. Pincus v. Adams, 274 N.Y. 447, 454-455, 9 N.E.2d 46; People v. Hayes, 140 N.Y. 484, 490-491, 35 N.E. 951; Calder v. Bull, 3 Dallas [U.S.] 386, 390, 1 L.Ed. 648.)" (emphasis supplied) ]. See also James Sq. Assoc. v. Mullen, 21 N.Y.3d 233, 970 N.Y.S.2d 888, 993 N.E.2d 374, 2013 N.Y. Slip Op. 03935 (2013) [" [F]or centuries our law has harbored a singular distrust of retroactive statutes" ( Eastern Enterprises v. Apfel, 524 U.S. 498, 547, 118 S.Ct. 2131, 141 L.Ed.2d 451 [1998, Breyer, J., dissenting] ). The United States Supreme Court stated in Landgraf v. USI Film Products [stated] that " [e]lementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expectations should not be lightly disrupted." (511 U.S. 244, 265, 114 S.Ct. 1483, 128 L.Ed.2d 229  ).']. See also discussion in Stogner v. California, 539 U.S. 607, 123 S.Ct. 2446, 156 L.Ed.2d 544 (2003) (state extended statute of limitations to time-barred sexual offenses) [analyzing statutory changes that impose additional punishments retroactively and reviewing four ways that a statute can violate ex post facto laws, " Category 3: ‘ [I]n other cases, they inflicted greater punishment, than the law annexed to the offence.’ " ].
The practical and very real effect of the New York DMV regulatory change was to impose, immediately and de facto retroactively, additional consequences upon the defendant than existed at the time of the plea. This is constitutionally offensive.
Ex post facto issues seem to arise often when legislation or regulations are passed expediently and with retroactive effect. The New York Courts and other state court often see such issues arise in cases of (a) sexual offender abuse or sexual offender registration and (b) DWI. See, e.g., Stogner v. California, 539 U.S. 607, 123 S.Ct. 2446, 156 L.Ed.2d 544 (2003) (sexual abuse); People v. Grice, 254 A.D.2d 710, 679 N.Y.S.2d 771 (4th Dep't, 1998) (sexual offender registration); People v. Mitchell, 300 A.D.2d 377, 751 N.Y.S.2d 530 (2nd Dep't, 2002) [Sexual Offender Registration [970 N.Y.S.2d 680] Act]; People v. Maldonado, 173 Misc.2d 612, 661 N.Y.S.2d 937 (Sup.Ct., Nassau, Co., 1997) (ruling the DWI enhanced sentencing rules do not violate ex post facto laws); People v. Farnsworth, 75 A.D.3d 14, 900 N.Y.S.2d 548 (4th Dep't, 2012) (sexual offense); People v. Kearns, 253 A.D.2d 768, 677 N.Y.S.2d 497 (2nd Dep't, 1998) (sexual offender registration); People v. Ballman, 15 N.Y.3d 68, 904 N.Y.S.2d 361, 930 N.E.2d 282 (2010) (DWI) and People v. Treadway, 163 Cal.App.4th 689, 77 Cal.Rptr.3d 786 (2008) (DWI) [imposing additional " lookback period" for convictions]. See also, Gordon v. Registry of Motor Vehicles, 75 Mass.App.Ct., (2009) [constitutional challenge to Melanie's Law, " The ex post facto claim. The United States Supreme Court has held that every law which " changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed," is in violation of the ex post facto clause of the United States Constitution. Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648 (1798). This prohibition, however, applies only to statutes that are punitive in nature; civil remedies are not subject to the prohibition against ex post facto laws. See Commonwealth v. Fourteen Thousand Two Hundred Dollars, 421 Mass. 1, 6, 653 N.E.2d 153 (1995)." ]; Bradsheer and Johnson v. Florida Department of Highway Safety, 20 So.3d 915 (Fla. Sup.Ct., 2009) [" They argue that the forced installation of the ignition interlock device violated the federal prohibitions against double jeopardy (Count II) and ex post facto laws (Count III). Both of these claims hinge on finding the installation of the device was a criminal penalty unjustly inflicted upon them. However, the Department, as an administrative agency, cannot impose criminal sanctions." ]; City of West Allis v. Radtke, 205 Wis.2d 735, 1996 WL 571011 Wisconsin Court of Appeals, Docket No. 95-2713 (1996) (DWI conviction effect up [on commercial drivers] ); Lescher v. Florida Department of Highway Safety and Motor Vehicles, 985 So.2d 1078 (Fla.Sup.Ct., 2008) [DWI, permanent revocation of license, " [i]n this case we consider whether a statutory amendment constitutes an ex post facto law. Florida law provides that after four convictions for driving under the influence (DUI), the defendant's driver's license shall be permanently revoked." ]; and People v. Forrestor, Cal. Ct. of Appeals, 2nd District, Docket No. B198662 (2007) [ex post facto challenge to statutory period of suspension; " Courts have routinely rejected ex post facto challenges to statutes that Courts reason that the sentence increase penalties for recidivism imposed upon a habitual offender is not an additional punishment for the earlier crime, but a punishment for the later crime, which is aggravated because of its repetitive nature." ].
This Court is aware that not all regulatory changes are considered violative of the prohibition against ex post facto laws. See, e.g., People v. Mitchell, 300 A.D.2d 377, 751 N.Y.S.2d 530 (2nd Dept, 2002) [SORA, sexual offender registration changes found not to violate ex post facto prohibition.]. See also People v. Guszack, 237 A.D.2d 715, 654 N.Y.S.2d 845 (3rd Dep't, 1997) [" Defendant appeals, primarily contending that, as applied to him, Vehicle and Traffic Law § 511(3)(a) constitutes an ex post facto law because it provides for enhanced punishment as the result of a preexisting condition, i.e., the revocation of his driver's license in 1984. We disagree." ], and People v. Kearns, 253 A.D.2d 768, 677 N.Y.S.2d 497 (2nd Dep't, 1998) (sexual offender registration).
In this case, however, the regulatory changes were significant, adding as much as two years to the period of ineligibility for a driver's license, and certainly support [970 N.Y.S.2d 681] the application made pursuant to CPL § 440.10.
The fundamental concept of the prohibition of ex post fact laws is putting a defendant on notice that certain conduct may lead to specified violations and consequences. People v. Hall, 158 A.D.2d 69, 557 N.Y.S.2d 879 (1st Dep't, 1990); U.S. v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989 (1954). In this case, at the time of the violation and the plea, the defendant was not on notice that a third violation of V & T § 1192(3) would or could lead to a suspension of driving privileges for two (2) years beyond the mandatory six (6) month revocation. While DWI was illegal before and after the regulatory change, the punishment/consequences as to driving privileges were quadrupled. While this may or may not constitute an ex post facto law, it certainly violates basically principals of justice.
The defendant's motion to vacate the plea of guilty is granted. The matter is restored to the trial calendar on all pending charges.