Opinion
2003BX003466.
Decided March 1, 2011.
Ignorantia legis neninem excusat — ignorance of the law is no defense or excuse — is one of the more familiar Latin common-law maxims. See People v Marrero, 69 NY2d 382, 385 (1987). It is also extremely relevant to this decision.
Defendant moves pursuant to CPL § 440.10 to vacate this 2003 misdemeanor conviction, entered via plea of guilty, to Operating a Motor Vehicle Under the Influence of Alcohol. Vehicle and Traffic Law (VTL) § 1192(2). His reasons are two-fold. First, defendant, a practicing New York attorney since 1978 and former Assistant District Attorney, states in an affidavit that was not aware when he pled guilty that he could be prosecuted for a felony if he were arrested for another "DWI" offense within ten years of this conviction. In that same affidavit, he also accuses the attorney who represented him, Lawrence Sheehan, of being ineffective because he claims counsel never told him that a possible future DWI prosecution could be a felony. Defendant further alleges that he never would have pled guilty in this matter if his attorney had so advised him, and argues that under Padilla v. Kentucky, 130 S. Ct. 173 (2010), he is entitled to have this plea vacated. The People have provided an affidavit from Mr. Sheehan in which counsel states defendant's allegations "ring false," and he does "advise all [his] clients that pleading guilty to a DWI charge, or any other charge, may subject them to more serious charges and/or sentences if they are arrested and prosecuted in the future."
On December 6, 2006, less than four years after the conviction in this case, defendant was arrested and then indicted for Operating a Motor Vehicle While Under the Influence of Alcohol as a felony; an element of the charge is this conviction. That case is again scheduled for trial on March 8, 2011. Defendant filed this motion on February 4, 2011. For all the reasons stated herein, the motion is denied.
At the outset, as defendant acknowledges, in People v. Lancaster, 260 A.D,2d 660, 661 (3rd Dept. 1999), a felony DWI case in which that defendant claimed his attorney on a prior misdemeanor case was ineffective for the same reason alleged herein, the Court held: "It is abundantly clear that the fact that a defendant is subject to enhanced criminal treatment for an offense that he or she may commit in the future is a collateral consequence of the plea, about which a defendant need not be advised." Id. (emphasis added), Defendant argues that because the words "collateral consequence" appear in the decision, this Court should find that Lancaster was tacitly or even explicitly overruled by Padilla. Lancaster remains binding authority on this Court. See Mountain View Coach Lines v. Storms, 102 AD2d 663, 664-65 (2nd Dept. 1984). Moreover, Padilla and Lancaster are completely different cases.
Defendant cites no case applying the Padilla holding to any situation other than one in which a defendant was either misadvised, or not advised, by a lawyer about the immigration consequences of a criminal conviction. As the People note, the First Department has recently rejected a defendant's claim, post- Padilla, that his guilty plea was rendered invalid because the trial court failed to advise him of the "collateral consequence" that his New York State conviction could be used to "enhance" a sentence on a pending federal criminal matter. People v. Pierre, 80 AD3d 441 (1st Dept. 2011). Notably, the Court cited Lancaster.
The definition of a "collateral consequence" of a criminal conviction, as well as whether a defendant is entitled to have a guilty plea vacated when that defendant alleges counsel did not advise him or her about such consequence prior to entering the plea, is the subject of much debate. See, e.g. People v. Harnett, 2011 NY Slip. Op. 00744 (Court of Appeals, February 10, 2010). The consequence of the criminal conviction in Padilla — deportation — was virtually automatic based on the conviction itself. In striking contrast, the consequence at issue in this case did not become relevant until defendant was charged once again with essentially committing the same crime. The People can prosecute defendant for DWI based on the December 6, 2006 arrest despite the existence of this conviction. In that case, they allege defendant drove a car, got into an accident, and had a .17 Blood Alcohol Content. The misdemeanor conviction in this case merely enhances the penalty that may be imposed for the subsequent crime. This does not make the current prosecution a "collateral consequence" of this conviction based on defendant's overly-broad reading of Padilla. Padilla is a very narrow ruling. It had nothing to do with an attorney who failed to give legal advice. At bottom, it is a garden variety case about an attorney who gave absolutely wrong legal advice, which the client, who was not a citizen, relied on when he decided to plead guilty to possessing a large quantity of marihuana, believing his attorney was correct that this conviction would not make him subject to deportation. Thus, the finding that Mr. Padilla's attorney was constitutionally ineffective was hardly remarkable, since, by giving decidedly wrong legal advice upon which that defendant relied to his detriment, the attorney failed to provide effective representation under Strickland v. Washington, 466 U.S. 668, 687 (1984). The Supreme Court never hinted that the decision should be interpreted to mean that any attorney who had failed to affirmatively give a client advice on any possible collateral legal issue that might arise out of a criminal conviction was ineffective under Strickland. As one federal court recently observed, " Padilla does not require that defendants be informed of all collateral consequences of pleading guilty." United States v. Bakilana, 2010 U.S. Dist. LEXIS 108687 (E. Dist Va. 2010).
Padilla is binding legal precedent in two respects, and they both relate solely to immigration consequences of a criminal conviction obtained via guilty plea. First, the Court departed from prevailing legal precedent and ruled that although counsel's bad advice did not result in increasing the penalty or sentence for the criminal conviction itself, that advice was of sufficient magnitude to have caused Mr. Padilla to be subject to a civil deportation proceeding, and this singularly serious consequence mandated that the criminal conviction be vacated. In doing so, the Court was unconcerned about labeling any immigration-related result flowing from a criminal conviction as a "direct" or "collateral" consequence of that conviction. Padilla, 130 S.Ct. at 1481 n. 8. The Court said that it was basing its ruling on the "drastic" and "unique nature of deportation" as a real and inevitable consequence of certain criminal convictions. Id. at 1478 — 80. In addition, because of this "drastic" and "unique" consequence, the Court also announced a new and sweeping rule that every defense attorney representing a client who is not a United States citizen is now required to give accurate advice on the immigration consequences of a guilty plea. Id. at 1482 — 83.
Defendant, relying on two cases, also asks this Court to rule that Padilla must be applied retroactively to his claim. The People note that there is a wealth of authority holding that Padilla should not be applied retroactively. Because this Court finds that defendant has not stated a valid Padilla claim, there is no reason to address this issue.
Thus, neither Padilla, nor apparently any other case, has ever required that attorneys tell clients considering entering a guilty plea that if they commit another crime they can face an enhanced criminal sanction. It has long been settled that an attorney who fails to advise a client who is pleading guilty to a felony that the client will face enhanced sentencing if convicted of another felony within ten years is not ineffective. People v. McGrath, 73 NY2d 803, 804 (1977); People v. Hannon, 209 AD2d 319, 320 — 21 (1st Dept. 1994). And, the Lancaster decision, which is based on the same principle, remains sound law. If it did not, and defendant's Padilla argument were valid, many convictions involving recidivist criminals would be in jeopardy. The Legislature has enacted a wide variety of statutes making a defendant liable for felony charges based on a conviction for a prior related misdemeanor charge. While it might be prudent to advise any client who is pleading guilty to any crime that recidivism usually leads to more severe penalties, as Mr. Sheehan states he advises all of his clients, the failure to give such advice is not a ground to vacate the conviction should the same defendant elect to commit the same crime again and be subject to an enhanced penalty. Indeed, defendant's argument would require a finding that a lawyer was ineffective for failing to advise a client who was pleading guilty to any misdemeanor offense codified in any chapter of the Laws of New York that the conviction could be the basis for a felony prosecution for Criminal Possession of a Weapon in the Third Degree, pursuant to Penal Law § 265.02(1), if the client were later arrested for carrying a gravity knife, an unloaded gun, or any of the weapons enumerated in Penal Law § 265.01(1), (2), (3), or (5). This was not the law before Padilla, and it is not the holding of that case.
Some examples include Penal Law §§ 165.11 (Auto Stripping in the First Degree); 165.06 (Unauthorized Use of a Vehicle in the Second Degree), 215.52(2) (Aggravated Criminal Contempt); 240.31(2) (Aggravated Harassment in the First Degree); 176.35 (Aggravated Insurance Fraud); 145.27 (Aggravated Cemetery Desecration in the First Degree); 240.60(1) (Falsely Reporting an Incident in the First Degree); 190.83 (Unlawful Possession of Personal Identification Information in the First Degree).
Moreover, because these "aggravated," "enhanced" or "bump-up" type crimes are defined in penal statutes, everyone, including defendant, is already on notice of all of their elements, regardless of whether their lawyers so advise them. The fact that a person who is convicted of misdemeanor VTL § 1192(2) can be liable for a felony if he or she again commits the same crime has been a matter of state law at least as far back as the second world war. See People ex rel Seagrist v. Mederer, 33 N.Y.S.2d 114, 117 (Sup Ct Nassau Co. 1942). Since a prior conviction is merely an element of the felony DWI charge, People v. Dugan, 188 A.D, 2d 927, 928 (3rd Dept. 1992), all individuals are on notice of it. No one can validly claim legal ignorance of the elements of a codified crime, including an element that elevates a misdemeanor to a felony. Cf. People v. Mitchell, 77 NY2d 624, 626 (1991). The publication of the law itself serves as notice to all of the elements of any crime. People v. Santana, 117 Misc 2d 1016, 1018 (Sup. Ct. Bronx Co. 1983); see generally Marrero, 69 NY2d at 384 — 86. Even if there were legal merit to defendant's Padilla-based argument, the motion would still be denied. Based on the statements in Mr. Sheehan's affidavit, the minutes of the guilty plea in this case, and the many exhibits annexed to the People's affirmation in opposition, the Court finds defendant's allegations about his own lack of knowledge of the law, his claim that he would never have pled guilty in this case if he knew he could be prosecuted for a felony if rearrested, and his accusation about Mr. Sheehan's ineffectiveness, are unworthy of belief.
In terms of the Strickland claim, the record demonstrates that Mr. Sheehan provided constitutionally valid, and exemplary, legal representation. As the People note, this was defendant's third conviction for Operating a Motor Vehicle While Under the Influence of Alcohol. On July 31, 1990, defendant was convicted in the Village Court of Pelham Manor of a misdemeanor DWI charge. The very next day, In Criminal Court, Bronx County, defendant was convicted of Operating a Motor Vehicle While Impaired by Alcohol, a traffic infraction. VTL § 1192(1). According to the People's records, in this prior Bronx case, defendant registered a .16 Blood Alcohol Content upon his arrest, and he was also involved in an accident. Defendant mentions nothing about these cases, or what his lawyers may have told him about the consequences of future violations of the same statute when he entered those pleas.
In this case, police paperwork annexed as exhibits to the People's motion response, documents which Mr. Sheehan acknowledges receiving and sharing with defendant prior to the plea, show that a civilian motorist informed a police lieutenant that defendant was intoxicated. The lieutenant observed the defendant driving "erraticly, weaving in and out of lanes without signaling," on the Major Deegan Expressway at 5:15 p.m. during a weekday rush hour. Defendant admitted to having five or six glasses of wine that afternoon, was observed "falling" several times during the field sobriety tests, and his Blood Alcohol Content was .16.
Despite the defendant's serious record of recidivism for the same offense, and the apparently overwhelming evidence of guilt in the People's possession, Mr. Sheehan nonetheless negotiated a disposition with the District Attorney's office, which he also convinced this Court to accept, that did not include a jail sentence, or probation, or even a fine. Defendant was required to complete an alcohol treatment program, which is usually a component of a sentence in DWI cases, but it was one of his own choosing. The lone punitive sanction defendant received involved his performing "DWI community service," consisting of spending 150 hours in local schools educating students about the dangers and penal consequence of driving while intoxicated. Not only did defendant leap at the opportunity to accept this very lenient disposition, but, during the plea colloquy, he went out of his way to praise Mr. Sheehan when he thanked the Court for its "patience, and also for your time, to allow Mr. Sheehan to work with the DA's office to bring about this disposition." For defendant to now swear in an affidavit that he would not have accepted the plea deal he fought so hard to obtain if he knew that this conviction would be the basis for a potential future felony prosecution is not only mind-boggling, but, as Mr. Sheehan says, it "rings false." Defendant's current claim of being dissatisfied with Mr. Sheehan's representation in this case is also belied by the fact that he retained Mr. Sheehan to represent him after he was arrested on the current felony drunk driving case. In fact, Mr. Sheehan was his attorney on the new case from December 2006 until September 2009. The reasons he retained new counsel are unknown.
Finally, defendant's belated decision to bring this motion is a transparent attempt to delay the trial of his new matter. Even if defendant had been unaware that he faced a potential felony prosecution based on yet another DWI arrest at the moment he entered his guilty plea, he received actual notice of that law only moments later in the courtroom when he was given a copy of the document, which he also signed, stating his driver's license was suspended. That document, which is in the court file, lists all the potential penalties of DWI convictions, and specifically advises all defendants who receive this form, and who bother to read it, that a second arrest for misdemeanor DWI within ten years of a conviction for that same crime can result in a felony prosecution. Also in the court file is a document reflecting the fact that defendant completed the New York State Department of Motor Vehicle's "Drunk Driver Education" program before having his driver's license reinstated, a program that exists to advise defendants convicted of DWI crimes of the penal consequences as well as the societal dangers of recidivist drunk driving. VTL § 1196(1). Presumably defendant would have refreshed his recollection about DWI penalties prior to fulfilling his commitment to educate young students about such penalties. Despite the wealth of knowledge he acquired within hours, days and months of this conviction, defendant never moved to vacate it in the four years prior to his arrest for the felony. More telling, he waited more than four years after his new arrest, and more than fifteen months after hiring his current attorney. Defendant offers no explanation for the delay. For this reason as well, the motion is denied. People v. Friedgood, 58 NY2d 467, 471 (1983); People v. Hanley, 255 A.D,2d 837, 838(3rd Dept. 1998); People v. Adorno, 202 AD2d 439 (1st Dept. 1994).
For the reasons stated herein, defendant's motion is denied in all respects.
This constitutes the Decision and Order of the Court.