
    The People of the State of New York, Appellant, v. Charles Duell, Respondent.
    Argued March 19, 1956;
    decided April 27, 1956.
    
      Harry L. Rosenthal, District Attorney (Nicholas P. Varlan of counsel), for appellant.
    I. The trial court did not err in failing to advise respondent pursuant to section 335-a of the Code of Criminal Procedure. (Matter of Ohmann v. Harnett, 168 Misc. 521; People v. Sutcliffe, 255 App. Div. 299; People v. 
      Serences, 255 App. Div. 587; People v. Spence, 176 Misc. 676; People v. Grogan, 281 App. Div. 706; People v. Oboler, 276 App. Div. 908.) II. The failure of the trial court to so advise respondent does not render respondent’s conviction void. (People v. McBride, 202 Misc. 544.)
    
      John F. Burke for respondent.
    I. The trial court erred in failing to advise respondent pursuant to section 335-a of the Code of Criminal Procedure, even though he was represented by counsel. (People v. Serences, 255 App. Div. 587; People v. Oboler, 276 App. Div. 908; Matter of Eckerson v. Macduff, 284 App. Div. 56; Matter of De Lynn v. Macduff, 305 N. Y. 501; People v. Sutcliffe, 255 App. Div. 299.) II. The failure of the trial court to so advise respondent renders the conviction of respondent void. (People ex rel. Lawton v. Snell, 216 N. Y. 527; Matter of Ohmann v. Harnett, 168 Misc. 521; People v. Spence, 176 Misc. 676; Matter of Nervo v. Mealey, 175 Misc. 952.)
   Burke, J.

This appeal presents the question as to whether the trial court upon arraignment is obliged to instruct the defendant of the possible consequence of a plea of guilty as required by section 335-a of the Code of Criminal Procedure, although the defendant did not have a license to drive a motor vehicle and was represented by counsel.

The defendant was indicted December 2, 1954, and charged with the crime of driving while intoxicated in violation of subdivision 5 of section 70 of the Vehicle and Traffic Law, as a felony. On December 9, 1954, defendant pleaded guilty and on January 6, 1955, he was sentenced as a third offender to he committed to the State Prison at Attica, New York, for an indeterminate term, the minimum of which was to be one year and the maximum two years. Execution of the judgment was suspended. The defendant was placed on five (5) years’ probation and ordered to refrain from driving automobiles and from drinking alcoholic beverages. Counsel represented the defendant at the arraignment and all subsequent proceedings.

After a hearing on January 14, 1955, on a charge of violation of probation, the defendant was held to have violated the terms of his probation; the court revoked, vacated and set aside the sentence of January 6,1955. The defendant was then sentenced to an indeterminate term at the State Prison at Attica, New York, the minimum to be one year and the maximum two years, and was fined one thousand dollars ($1,000), with the provision that if said fine remained unpaid, the defendant was to be confined an additional one thousand (1,000) days.

It does not appear from the record that at the time of arraignment the court was aware that the defendant did not possess a license to drive a motor vehicle. The defendant conceded on January 6, 1955, prior to sentence that he did not have a license at the time of arraignment.

On the defendant’s appeal to the Appellate Division, the People relied upon the argument that the presence of counsel obviated the necessity of the trial court so advising the defendant. The Appellate Division reversed the judgment of conviction on the law and vacated and set aside the plea of guilty.

Pursuant to section 520 of the Code of Criminal Procedure, an Associate Judge of the Court of Appeals granted leave to appeal upon a certificate that a question of law was presented arising out of the status of the defendant as an unlicensed driver, which ought to be reviewed by this court.

Generally this court will not review questions raised for the first time on the appeal to this court. However, where a statute is before us for construction we should construe it in the light of all the facts as they exist. To do otherwise might result in deciding litigation contrary to law. (Persky v. Bank of America Nat. Assn., 261 N. Y. 212; Beekman v. Frost, 18 Johns. 544.) In any event we must use good law in reaching a decision. (Rentways v. O'Neill Milk & Cream Co., 308 N. Y. 342, 349; Erie R. R. Co. v. Tompkins, 304 U. S. 64.)

The underlying purpose of all legislation relating to motor vehicle traffic is the regulation of such traffic for the protection and safety of people at large. In furtherance of this purpose, the lawful operation of a motor vehicle on the public highways requires the procurement of a license as a requisite of a minimum proof of capability. Indeed, even the lawful operation of a motor vehicle on the public highways requires that ownership be evidenced by a certificate of registration. The licensing system is the keystone of all the legislative safeguards deemed necessary to protect the public against death or mutilation. Hence a license or a certificate of registration is valuable. The Legislature intended by section 335-a of the Code of Criminal Procedure to protect the rights of persons possessing such a license or certificate.

Representation by counsel does not relieve the magistrate of the duty of complying with the mandate of the statute. (Matter of De Lynn v. Macduff, 305 N. Y. 501; People v. Grogan, 281 App. Div. 706.) But the intendment of this legislative mandate is the accomplishment of a meaningful act, rather than the performance of a meaningless ritual. The ascertainment of the defendant’s status as a licensed or unlicensed driver is designed to serve a dual purpose (1) whether under subdivision 2 (par. [b]) of section 71 of the Vehicle and Traffic Law the power of the trial court may be effectively exercised, and (2) that the Vehicle and Traffic Law is being fully enforced. A defendant having the status of an unlicensed driver or unregistered owner is not entitled to an instruction as to consequences which cannot be visited upon him. Where a person has been convicted of driving a motor vehicle while intoxicated, no new license can be issued for at least six months after a revocation. (Vehicle and Traffic Law, § 71, subd. 2, par. [b]; subd. 5.)

The purpose of section 335-a of the Code of Criminal Procedure was to afford protection to those possessing the right of legally driving or owning motor vehicles. Since the defendant here did not possess the right, having been convicted twice previously for driving while intoxicated, there was no reason for an instruction as to the possible deprivation of the right. (Vehicle and Traffic Law, § 94-a.)

As the unlicensed status has been admitted, the failure of the record to show that the District Attorney and the County Judge demanded proof of possession of a license or registration upon arraignment may not be availed of or resorted to by the defendant as a ground for reversing this conviction.

The order of the Appellate Division should be reversed and the judgment of the County Court reinstated.

Desmond, J.

(dissenting). I dissent and vote to affirm. There was, it is conceded, no compliance whatever here with the mandatory provisions of section 335-a of the Code of Criminal Procedure:

§ 335-a. Provisions applicable to arraignments for traffic violations.

“ The magistrate, upon the arraignment in this state of a resident of this state charged with a violation of the vehicle and traffic law, or other law or ordinance relating to the operation of motor vehicles or motor cycles, and before accepting a plea, must inform the defendant at the time of his arraignment, in substance as follows:

‘1 A plea of guilty to this charge is equivalent to a conviction after trial. If you are convicted, not only will you be liable to a penalty, but in addition your license to drive a motor vehicle or motor cycle, and your certificate of registration, if any, are subject to suspension and revocation as prescribed by law.

“ The giving of the foregoing instructions by means of a statement printed in bold red type in a size equal to at least twelve point type, upon a summons or ticket issued to a person charged with any such violation shall constitute compliance with the reqairements.of this section.

“ The foregoing provisions of this section may be waived as provided in section three hundred thirty-five of this chapter.”

The trial court’s omission of the essential procedure was on the mistaken ground that compliance was unnecessary because defendant was represented by counsel. That was the only ground urged in the Appellate Division by the People to justify the omission. Now this court is holding that the omission was excused by the circumstance, casually noted in the record, that defendant actually had no operator’s license at the time of his arraignment. We are thus reading into this carefully drawn statute an exception not expressed therein and which the Legislature could hardly have intended. The statute is an all-inclusive one applicable to “ the arraignment in this state of a resident of this state charged with a violation of the vehicle and traffic law, or other law or ordinance relating to the operation of motor vehicles or motor cycles ”. It makes completely unlawful the acceptance of a guilty plea in any such prosecution unless the warning has first been given. To say that the statute applies only when defendant presently has a driving license is to require a new procedure whereby the magistrate would always have to conduct an initial investigation as to whether defendant ever had such a license and, if so, whether it has been revoked or suspended and, if so, whether the revocation or suspension has been annulled or terminated. Since, by official Motor Vehicle Bureau figures, there were in 1955 some 154,000 suspensions and 14,000 revocations, investigations by every traffic court in every case of the existence and currency of a license wonld throw the prosecution of such cases into confusion.

The 1954 amendment (L. 1954, ch. 664) permitting the giving of the warning by the alternative method (see third sentence of statute, supra) of a printed statement on the summons or ticket is additional proof of the legislative intent that before any guilty plea be taken on such a charge there must always be warning of possible consequences as to the license.

Conway, Ch. J., Dye and Fuld, JJ., concur with Burke, J.; Desmond, J., dissents in an opinion in which Van Voorhis, J., concurs; Froessel, J., taking no part.

Order reversed, etc.  