
    In the Matter of Charles W. Kinney, Petitioner, v Peter W. Bortle, as Vernon Town Justice, et al., Respondents.
    Supreme Court, Oneida County,
    June 30, 1987
    APPEARANCES OF COUNSEL
    
      Onofrio J. Puleo for petitioner. Rossi, Kehoe, Murnane & Hughes (Vincent J. Rossi, Jr., of counsel), for respondents.
   OPINION OF THE COURT

John W. Grow, J.

Petitioner seeks to vacate the order of the Vernon Town Justice which directed him to surrender his license to operate a motor vehicle in the State of New York on the ground that the order was not made pursuant to Vehicle and Traffic Law § 510 (2) (b) (vi) (a) and (b) within seven days of petitioner’s first appearance before the Vernon Town Court on the charge of violation of Vehicle and Traffic Law § 1192 (3).

It appears undisputed that petitioner was convicted on an alcohol-related driving offense within the five years prior to the alleged commission of the offense which is the basis of the pending proceeding in Vernon Town Court. Petitioner’s license must, therefore, be surrendered pursuant to Vehicle and Traffic Law § 510 (2) (b) (vi) (a) and (b). The fact that the Vernon Town Justice failed to require surrender of the license within the seven-day period prescribed by statute cannot be construed as a waiver of the statutory requirement that petitioner’s license be surrendered. A Town Justice simply has no authority to waive the requirements of Vehicle and Traffic Law § 510 (2) (b) (vi) (a) and (b). The Town Justice’s letter directing surrender of the license, which was sent some three weeks after petitioner’s first appearance, is legally effective, and petitioner must immediately comply with that directive.

The petition is dismissed in its entirety.  