Schwanke v. Hults

Appellate Division of the Supreme Court of New York

Schwanke v. Hults

17 A.D.2d 898, 233 N.Y.S.2d 6, 1962 N.Y. App. Div. LEXIS 7675

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 18, 1962

StatusPublished

This text of 17 A.D.2d 898 (Schwanke v. Hults) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Schwanke v. Hults, 17 A.D.2d 898, 233 N.Y.S.2d 6, 1962 N.Y. App. Div. LEXIS 7675 (N.Y. Ct. App. 1962).

Pincite

Opinion

Order unanimously reversed and proceeding dismissed, without costs. Memorandum: Petitioner was convicted in Canada of driving a motor vehicle while his ability was impaired by alcohol. Upon notification of his plea of guilty and conviction, the Commissioner of Motor Vehicles revoked petitioner’s license in compliance with the statutory mandate. The petitioner in the proceeding before Special Term alleged errors made in the Canadian court and stated that his plea of guilty was made when he was not represented by counsel, that he was not informed of his right to counsel and further that he did not want to be held for trial in a foreign country. None of these grounds justifies the annulment of the Commissioner’s revocation and restitution of the license. It has been held repeatedly that the petitioner’s remedy is to attack directly his conviction in the court of original jurisdiction and that he cannot collaterally attack the conviction in this proceeding (Matter of Hickey v. Kelly, 9 A D 2d 386, affd. 8 N Y 2d 715; Matter of Woodard v. Macduff, 5 A D 2d 26, 28, appeal dismissed 5 N Y 2d 913; Matter of La Victoire v. Kelly, 5 A D 2d 548, 551, 552). (Appeal from final order of Erie Special Term granting petitioner’s application and directing discontinuance of all revocation proceedings relating to petitioner’s driver’s license.) Present — Williams, P. J., Goldman, Halpern, McClusky and Henry, JJ.

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Order unanimously reversed and proceeding dismissed, without costs. Memorandum: Petitioner was convicted in Canada of driving a motor vehicle while his ability was impaired by alcohol. Upon notification of his plea of guilty and conviction, the Commissioner of Motor Vehicles revoked petitioner’s license in compliance with the statutory mandate. The petitioner in the proceeding before Special Term alleged errors made in the Canadian court and stated that his plea of guilty was made when he was not represented by counsel, that he was not informed of his right to counsel and further that he did not want to be held for trial in a foreign country. None of these grounds justifies the annulment of the Commissioner’s revocation and restitution of the license. It has been held repeatedly that the petitioner’s remedy is to attack directly his conviction in the court of original jurisdiction and that he cannot collaterally attack the conviction in this proceeding (Matter of Hickey v. Kelly, 9 A D 2d 386, affd. 8 N Y 2d 715; Matter of Woodard v. Macduff, 5 A D 2d 26, 28, appeal dismissed 5 N Y 2d 913; Matter of La Victoire v. Kelly, 5 A D 2d 548, 551, 552). (Appeal from final order of Erie Special Term granting petitioner’s application and directing discontinuance of all revocation proceedings relating to petitioner’s driver’s license.) Present — Williams, P. J., Goldman, Halpern, McClusky and Henry, JJ.

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Bluebook (online)

17 A.D.2d 898, 233 N.Y.S.2d 6, 1962 N.Y. App. Div. LEXIS 7675, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schwanke-v-hults-nyappdiv-1962.