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People v. Olecski

Criminal Court of the City of New York, New York County

September 5, 2017

The People of the State of New York, Plaintiff,
v.
Fallon Olecski, Defendant.

          For the Defendant: Cascione, Purcigliotti & Galluzzi, P.C., by Thomas. G. Cascinoe, Esq.

          For the People: Cyrus R. Vance, Jr., New York County District Attorney, by A.D.A. Monica Narang

          Steven M. Statsinger, Judge

         Defendant 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.

         The 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.

         I. Introduction

         Both 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. [1] 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.

         Defendant 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.

         II. Legal Discussion

         Defendant 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).

         A. Introduction

         The 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.

         B. Federal Standard

         A 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).

         1. Counsel's ...


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