When DACA Fear Meets a DWI: Somers Justice Court Says “Not a Certainty at All”

MICHAEL J. MCDERMOTT, J. Defendant is charged with violations of driving while

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intoxicated (refusal) (Vehicle and Traffic Law § 1192 [3]), cross- ing road hazard markings (Vehicle and Traffic Law § 1128 [d]), and operating a motor vehicle without an inspection certificate (Vehicle and Traffic Law § 306 [b]). On September 16, 2024, defendant, while represented by counsel, was arraigned in Somers Justice Court and entered a plea of not guilty. At all stages of the instant prosecution, de- fendant was represented by counsel. On November 25, 2024, defendant pleaded guilty to one count of driving while intoxicated (Vehicle and Traffic Law § 1192 [3]), the first step of the District Attorney’s DWI Interim Proba- tion Program, which defendant completed. On May 19, 2025, with the consent of the District Attorney, defendant’s plea was vacated by the Somers Justice Court with the understanding that defendant would be moving to dismiss the charges pursuant to CPL 170.40. (People v Clayton, 41 AD2d 204 [2d Dept 1973].) Defendant’s Clayton motion has been fully briefed and argument by counsel has been heard. The gravamen of defendant’s motion is that if convicted of the violation of driving while ability impaired (DWAI) under Vehicle and Traffic Law § 1192 (1) her deferred action for child- hood arrivals (DACA) status (discussed infra) would be rescinded and she would be deported to Ecuador, the country of her birth, which she hasn’t seen since she was two years old. This court is not unsympathetic to defendant’s concerns regard- ing the possible consequences to the DACA status defendant may face should the instant charges not be dismissed. None- theless, the court finds that the loss of her DACA status as a result of the expected outcome here is not a certainty at all. This court must determine whether, in light of the applicable enumerated factors set forth in CPL 170.40, defendant’s potential loss of her DACA status ‘‘cries out for fundamental justice beyond the confines of conventional considerations.’’ (People v Belge, 41 NY2d 60, 62-63 [1976]; People v Clayton.) This court must also balance the interests of defendant and the community. (People v Rickert, 58 NY2d 122, 127 [1983].) This court has found no other case where a court has ad- dressed the loss of DACA status as a basis for dismissal in the interests of justice. This appears to be a case of first impres- sion. A Clayton motion should be granted only where a defendant has demonstrated by a preponderance of the credible evidence

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that a compelling reason exists to warrant dismissal in the interests of justice. Where a defendant does not meet this burden, the court may summarily deny the motion. (People v Schlessel, 104 AD2d 501, 502 [2d Dept 1984].) This court, to the extent applicable, must examine and consider the merits of defendant’s application in light of the factors enumerated in CPL 170.40 (1) (a) through (j). (People v Clayton.) This court must also balance the interests of defend- ant and the community. (People v Rickert, 58 NY2d 122, 127 [1983].) In connection with defendant’s Clayton motion, there are 10 factors which must be considered in determining the discretion- ary granting of an interests of justice relief: (1) the seriousness and circumstances of the offense; (2) the extent of harm caused by the offense; (3) the evidence of guilt, whether admissible or inadmissible at trial; (4) the history, character and condition of defendant; (5) any exceptionally serious misconduct of law enforcement personnel in the investigation, arrest and prose- cution of defendant; (6) the purpose and effect of imposing upon defendant a sentence authorized for the offense; (7) the impact of a dismissal upon the confidence of the public in the criminal justice system; (8) the impact of a dismissal on the safety or welfare of the community; (9) where the court deems appropriate, the attitude of the complainant or victim with re- spect to the motion; and (10) any other relevant fact indicating that a judgment of conviction would serve no useful purpose. (People v Clayton.) This court is well aware that judges should not function like machines, fixing sentences according to some inflexible statu- tory algorithm, but rather are cognizant of, and governed by, countless human variables that determine the justness or unjustness of decisions. Below is the court’s assessment of the Clayton factors. 1. The Seriousness and Circumstances of the Offense In the motion, defendant concedes that any allegation of drunk driving is serious and should be treated seriously. Fur- ther, the overwhelming public policy is ‘‘to protect those who make use of the roads from the needless deaths, injuries, and property damage resulting from drunk driving.’’ (People v Kel- ley, 141 AD2d 764, 765 [2d Dept 1988] [brackets omitted].) 2. The Extent of Harm Caused by the Offense In addition to the charge of driving while intoxicated, de- fendant is charged with crossing road hazard markings (Vehi-

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cle and Traffic Law § 1128 [d]). Trooper O’Dair’s notes state: ‘‘[Defendant’s vehicle] travelling North on Route 100 T/Somers observed crossing solid white lane markings [i.e., fog lines] with both passenger tires. Further, investigation revealed that the NYS inspection for [defendant’s vehicle] expired as of [July 31, 2024].’’ Although defendant did not cause any personal or property damage, ‘‘alcohol-related driving creates a substantial risk of harm to the public.’’ (See People v Jones, 53 Misc 3d 1209[A], 2016 NY Slip Op 51487[U], *2 [Crim Ct, NY County 2016]; People v Kelley at 765 [‘‘(D)riving while intoxicated is not a victimless crime . . . Rather, it is an offense against the soci- ety as a whole. This court has long recognized that ‘(a)n intoxicated person who operates an automobile on a highway is a menace to the public. He exhibits no regard for the safety of his fellow man’ ’’ (citation omitted)].) In the motion, defendant claims that there was no evidence of tangible harm from defendant’s actions. According to a Moth- ers Against Drunk Driving (MADD) analysis of U.S. Centers for Disease Control and Prevention (CDC) data,* on an average day, there are nearly 347,000 drunk drivers on the road, and most offenders drive drunk at least 80 times before they are arrested. Contrary to defendant’s assertion, driving while intoxicated, compounded by defendant’s failure to drive safely in her lane, creates an inherent risk of harm. Simply because no one was injured or there was no property damage does not translate to mean the alleged offense caused no tangible harm. 3. The Evidence of Guilt, Whether Admissible or Inadmis- sible at Trial The District Attorney must prove defendant is guilty beyond a reasonable doubt through the testimony of the New York State Trooper who observed defendant operating her vehicle and appearing intoxicated. However, in considering the factors of this Clayton motion, defendant already knowingly and voluntarily pleaded guilty to Vehicle and Traffic Law § 1192 (3), which may be considered, whether admissible or inadmissible at trial, as evidence of guilt. (People v Sierra, 149 Misc 2d 588 [Sup Ct, Kings County 1990].) Defendant requested that she be allowed to withdraw her plea upon learning that a non-criminal DWAI conviction (the

* MADD, Ignition Interlocks, https://madd.org/ignition-interlocks/.

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final result of the agreed upon DWI Interim Probation Program) may cause her status to be rescinded. 4. The History, Character and Condition of Defendant In the motion, defendant sets forth evidence of her history, character and condition, which appears exceptional. However, an exemplary background, employment status, or lack of prior contact with the criminal justice system is insufficient to justify dismissal of the criminal charges. (See People v Kelley at 765; People v Andrew, 78 AD2d 683 [2d Dept 1980].) Nor are busi- ness success or respectable standing in the community suf- ficient to warrant a finding of dismissal in the interests of justice. (See People v Varela, 106 AD2d 339 [1st Dept 1984]; People v Madsen, 11 Misc 3d 1067[A], 2006 NY Slip Op 50419[U] [Crim Ct, Kings County 2006].) The mere fact that defendant has no prior record or has an exemplary background is insufficient to justify the exercise of the court’s discretion, and ‘‘does not immunize [her] from the normal processes of the criminal law.’’ (People v Varela at 340.) 5. Any Exceptionally Serious Misconduct of Law Enforce- ment Personnel in the Investigation, Arrest and Prosecution of Defendant In the motion, defendant concedes that there was no misconduct by law enforcement. 6. The Purpose and Effect of Imposing upon Defendant a Sentence Authorized for the Offense Although defendant argues that if she is convicted of Vehicle and Traffic Law § 1192 (1), her DACA status would be rescinded and she would be deported to Ecuador, this court is unaware of the certainty of such a result. This court may take guidance from cases where a criminal defendant may be exposed to a loss of DACA status as a result of ineffective assistance of counsel in a criminal prosecution. In People v Lopez (65 Misc 3d 156[A], 2019 NY Slip Op 51960[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2019]), the Appel- late Term held that the defendant cannot show prejudice in connection with the effect of the guilty plea on the DACA status resulting from the alleged deficiencies in his attorney’s repre- sentation. Similarly, in People v Tendilla (50 Misc 3d 869 [Crim Ct, Queens County 2015]), the court denied the defendant’s pe- tition to vacate the guilty plea on the claim that counsel did not inform the defendant of the negative direct consequences of the guilty plea on the DACA status. The court held: ‘‘Conse-

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quently, the prospect of denial of the defendant’s DACA ap- plication could not have been ‘realistic enough that it reason- ably could have caused him, and in fact would have caused him, to reject an otherwise acceptable plea bargain.’ ’’ (Id. at 874.) Courts have denied the withdrawal of guilty pleas, which may have resulted in the potential loss of the DACA status. Thus it follows that defendant’s possible loss of her DACA status is not a sufficient mitigating factor to dismiss the crimi- nal charge in the interests of justice. 7. The Impact of a Dismissal upon the Confidence of the Public in the Criminal Justice System Due to the seriousness of drunk driving cases, the Legislature has prescribed restrictions on plea bargaining in cases where violations of Vehicle and Traffic Law § 1192 are charged. (Vehi- cle and Traffic Law § 1192 [10].) While a dismissal under CPL 170.40 is not specifically prohibited, it is evidence that the Legislature intends there to be sanctions in these cases that are directly related to the intoxicated or impaired driving. Aside from a not-guilty verdict after trial, outright dismissal of these charges is extremely rare and should not be granted lightly. Based on the steady flow of DWI prosecutions in the Somers Justice Court, there is no doubt that people charged with DWI charges would be zealously prosecuted. Therefore, contrary to defendant’s contention, dismissal of the accusatory instrument in this case would likely have a deleterious effect on public confidence in the criminal justice system in that, lacking any compelling reason to do so, dismissing the case against defend- ant would show disparate and arbitrary treatment vis-à-vis other defendants who stand charged of the same or similar of- fenses. (People v Jones.) 8. The Impact of a Dismissal on the Safety or Welfare of the Community The impact of a dismissal on the safety or welfare of the community is a deleterious effect on public confidence in the criminal justice system in that, lacking any compelling reason to do so, dismissing the case against defendant would show disparate and arbitrary treatment vis-à-vis other defendants who stand charged of the same or similar offenses. 9. Where the Court Deems Appropriate, the Attitude of the Complainant or Victim with Respect to the Motion There is no natural person who constitutes a complainant or victim in this case.

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10. Any Other Relevant Fact Indicating That a Judgment of Conviction Would Serve No Useful Purpose This court finds no other compelling factor, consideration or circumstance demonstrating that the conviction or prosecution of defendant would constitute or result in injustice. In view of the foregoing, the court finds that this case requires justice within the demands of conventional consider- ation, and does not cry out for fundamental justice beyond that framework. Defendant’s motion pursuant to CPL 170.40 is denied.