Published on:

C.P.L. 440.10 motion

On 10 October 2008, the defendant pled guilty to Common Law DWI or Driving While Intoxicated in violation of V.T.L. 1192(3). That plea satisfied the charges of Resisting Arrest, P.L. 205.30 and Failure to Take the Roadside Breath Test, V.T.L. 1194 (1)(B). Subsequent to the arraignment, the defendant appeared with his attorney, who requested an adjournment to submit motions. The motions were subsequently argued and the matter was set down for a probable cause hearing on 3 September 2008. However, instead of a hearing on that date the matter was adjourned to 10 October 2008. On that day a pre-trial conference was conducted in chambers with counsels. At that conference the People made the plea offer which resulted in the aforementioned plea. Prior to taking the defendant’s plea this court advised him of his right to a jury trial, the People’s burden of proof, and of the fact that the verdict of the six person jury must be unanimous.

The defendant was further advised that his lawyer could cross-examine the People’s witnesses, that he could present his own witnesses, and that he could testify, but if he chose not to do so that fact could not be used against him. The defendant then proceeded to waive his right to a trial. At that time the assistant district attorney engaged in a factual dialogue with the defendant wherein he asked if the defendant operated a motor vehicle under the influence of alcohol DUI on 14 March 2008 to which defendant answered in the affirmative. The defendant also admitted to drinking a “six-pack” upon further inquiry by the prosecutor.

Thereafter, the case was adjourned for return of a pre-sentence investigation and sentencing to 17 December 2008. After reviewing the pre-sentence investigation, wherein the defendant claimed he was unjustly arrested, the defendant was sentenced to a one year revocation of his driver’s license, the New York State Drinking Drivers Program, one Victim Impact Panel, three years probation, three work weekends a $500.00 fine and the required surcharge of $190.00. Despite the fact that the sentencing was about five weeks after his plea, the defendant again failed at that time to deny having operated his vehicle while intoxicated.

Again, on 23 December 2010, the defendant was arrested and charged with Per Se, Driving While Intoxicated, V.T.L. 1192(2), Common Law Driving While Intoxicated, V.T.L. 1192(3) and Excessive Tinted Glass, V.T.L. 375(12)(a)(b)(2). Since the defendant was convicted of Common Law Driving While Intoxicated V.T.L. 1192(3) in 2008, the most recent charge of Common Law Driving While Intoxicated, was charged as a felony pursuant to V.T.L. 1193(1)(c)(i). The defendant retained his current attorney, who filed a motion, pursuant to C.P.L. 440.10(1)(h) to vacate the previous driving while intoxicated conviction.

C.P.L. 440.10(1)(h) states as follows: “At any time after the entry of a judgment, the court in which it was entered may, upon motion of the defendant, vacate such judgment upon the ground that: The judgment was obtained in violation of a right of the defendant under the constitution of this state or of the United States.” The defendant argues that his conviction should be vacated because he was not advised by his attorney that he could have raised the defense of non-operation. Thus, he was alleging that the ineffective assistance of counsel resulted in his decision to plead guilty in October of 2008 to common law driving while intoxicated, which effectively denied him his right to an attorney.

To Be Cont…

New York DWI Lawyers, among others, at Stephen Bilkis & Associates are vigilant in the pursuit of cases involving the issues mentioned in the case above. Should you find yourself in the same situation as the defendant mentioned, please do not hesitate to call our toll free number or visit our place of business. Our New York Criminal Lawyers are ready to answer your questions.

Posted in:
Published on:
Updated:

Comments are closed.

Contact Information