New York Justice Court, Town of E. Rochester, Monroe County
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 ...