Criminal Court of the City of New York, New York County
the Defendant: Cascione, Purcigliotti & Galluzzi, P.C.,
by Thomas. G. Cascinoe, Esq.
the People: Cyrus R. Vance, Jr., New York County District
Attorney, by A.D.A. Monica Narang
M. Statsinger, Judge
was charged with Operating a Motor Vehicle While Intoxicated,
VTL §1192(2) and (3), and Operating a Motor Vehicle
While Ability Impaired, VTL §1192(1). On October 26,
2016, she pled guilty to Operating a Motor Vehicle While
Ability Impaired. The Court sentenced defendant to a one-year
conditional discharge, the conditions being that she pay a
fine and surcharge, attend the Impaired Driver's Program
and abide by a 90-day license suspension.
defendant now moves for an order pursuant to CPL §
440.10(1)(h) vacating the judgment on the ground of
ineffective assistance of counsel. In a case of apparent
first impression, the Court concludes that defense
counsel's erroneous advice regarding defendant's
ability to obtain a conditional license after her conviction
constituted ineffective assistance of counsel. Accordingly,
and for the reasons detailed below, defendant's motion is
GRANTED. The accusatory instrument is restored to its
pre-pleading status on the Part E Calendar.
defendant and the attorney who represented her at the plea
assert that defense counsel told the defendant that if she
pled guilty she would be able to obtain a conditional
license. This advice was incorrect. The DMW's 25-year
"look-back" rule, promulgated in 2013, rendered
defendant ineligible for a conditional license, 15 NYCRR
§134.7(a)(11)(I), and also triggered an automatic
license revocation lasting five additional years.
15 NYCRR 136.5(b)(3)(ii). Defense counsel asserts that he was
unfamiliar with these rules at the time he advised defendant
to plead guilty. Since counsel gave the defendant incorrect
advice regarding the relicense consequences of her guilty
plea, and defendant has convincingly established that she
would not have pled guilty but for that advice, she is
entitled to relief for ineffective assistance of counsel.
further argues that, because the five-year revocation of her
license was a direct consequence of the plea, the Court was
required to advise her of this prior to accepting the plea.
As to this, the Court disagrees. The five-year revocation is
a collateral consequence, not a direct consequence, of the
guilty plea, and a court need not inform a defendant of the
collateral consequences of a plea of guilty, other than
immigration consequences. People v. Peque, 22 N.Y.3d
168, 184 (2013). Accordingly, the Court was under no
obligation to advise the defendant about the actions that The
DMV would take, and the motion to vacate the judgment is
denied on this particular theory.
moves to vacate judgment under CPL 440.10(1)(h), which
provides for relief where the "judgment was obtained in
violation of a right of the defendant under the constitution
of this state or of the United States." Where a
defendant has received in effective assistance of counsel,
she is entitled to relief under this section. Cf. People
v. Maxwell, 89 A.D.3d 1108 (2d Dept. 2011).
defense correctly argues that counsel's incorrect advice
about the relicensing consequences of the guilty plea
constitutes ineffective assistance of counsel under both the
federal and state constitutions.
defendant relying on federal constitutional law "to
challenge the voluntary and intelligent character of [her]
guilty plea on the ground of ineffective assistance of
counsel must establish that defense counsel's advice was
not within the standard set forth in Strickland v.
Washington." People v. McDonald, 1 N.Y.3d
109, 113 (2003), citation omitted. Under Strickland,
the defendant must show, first, that counsel's
performance was deficient - or "unreasonable" -
and, second, that the deficient performance prejudiced the
defense. Strickland v. Washington, 466 U.S. 668,
690, 691-92 (1984). Where the defendant has pled guilty, in
order to satisfy the prejudice requirement, she "must
show that there is a reasonable probability that, but for
counsel's errors, [she] would not have pleaded guilty and
would have insisted on going to trial." Hill v.
Lockhart, 474 U.S. 52, 59 (1985).