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Defendant offered no explanation for the delay.


Defendant was charged with felony drunk driving. Defendant then moved to vacate his 2003 misdemeanor conviction of Operating a Motor Vehicle under the Influence of Alcohol which was entered via a plea of guilty.

According to the defendant, in an affidavit, he was not aware when he pled guilty in 2003 that he could be prosecuted for a felony if he were arrested for another DWI offense within ten years of his conviction; he accused the attorney who represented him of being ineffective because he never told him that a possible future DWI prosecution could be a felony; he never would have pled guilty if his attorney had so advised him; and argued that, under a landmark case which was decided in 2010, he is entitled to have his plea vacated.

According to the defendant’s criminal attorney who represented him in the 2003 misdemeanor conviction, in an affidavit which the People provided, 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.

After due consideration, the court denied the defendant’s motion.

The latin maxim “Ignorantia legis neminem excusat” or ignorance of the law is no defense or excuse. The aggravated, enhanced or bump-up type crimes involved here are clearly defined in penal statutes, and everyone, including the 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 can be liable for a felony if he or she again commits the same crime has been a matter of state law that dates as far back as the Second World War. Since a prior conviction is merely an element of the felony DWI charge, 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. The publication of the law itself serves as notice to all of the elements of any crime where a drug is involved.

Moreover, based on the statements in the affidavit of the defendant’s former lawyer, the minutes of the guilty plea, and the many exhibits annexed to the People’s affirmation in opposition, the 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 his lawyer’s ineffectiveness, were all unworthy of belief. It must be noted that defendant had 3 convictions already for Operating a Motor Vehicle While under the Influence of Alcohol. Defendant mentioned 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 his pleas. In fact, despite the defendant’s serious record of recidivism for the same offense, and the apparently overwhelming evidence of guilt, his former nonetheless negotiated a disposition with the District Attorney’s office, which he also convinced the 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 his lawyer when he thanked the Court for their patience, and also for their time, to allow his lawyer to work with the DA’s office to bring about the 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 the conviction would be the basis for a potential future felony prosecution is not only mind-boggling, but clearly rings false. Defendant’s claim of being dissatisfied with his former lawyer’s representation was belied by the fact that he retained him again on another felony drunk driving case.

Obviously, defendant’s belated decision to bring the motion at bar is a transparent attempt to delay trial. 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 was 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. 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 offered no explanation for the delay.

Accordingly, the defendant’s motion was denied in all respects.

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