Opinion
2009-269C.
Decided March 22, 2011.
The People of the State of New York, by Nicole M. Duvé, Esq., District Attorney.
Victoria M. Esposito, Esq., of counsel Defendant Dwayne Bent, by Spar Bernstein, P.C., Laura McLean, Esq., of counsel.
On December 14, 2009 defendant entered a guilty plea to the class D felony of criminal possession of a controlled substance in the fifth degree [Penal Law § 220.06] and was sentenced to five years of probation.
Through new counsel, defendant now moves pursuant to CPL § 440.10(1)(h) to vacate his conviction on the ground that his plea was not knowingly and voluntarily entered because he did not receive the effective assistance of counsel at the time of his plea. Alternatively, defense counsel asks for a hearing to determine the issues raised in the motion.
Represented by the Conflict Public Defender at the time of the plea, defendant was promised probation in return for a guilty plea. He entered that plea at his arraignment and first appearance in County Court. The transcript of plea, included in defendant's moving papers, establishes that no potential immigration consequences of the guilty plea were discussed on the record. In his own supporting affidavit defendant states that former counsel did not advise him as to the consequences of a guilty plea on his immigration status. Defendant was duly sentenced, and again the subject of potential immigration enforcement consequences did not come up during the sentencing proceeding on the record. Defendant was placed on probation and began to report; his supervision was transferred to Bronx county, where his family lived. Defendant did not appeal from his conviction or his sentence.
Approximately seven months after plea and sentence, defendant was reportedly detained by United States immigration authorities, allegedly based on the Penal Law drug conviction, and is now being held in Louisiana in federal custody, pending completion of proceedings to deport him to his native Jamaica.
Defense counsel asserts that because of the passage of time after sentence and because the potential for immigration action had not yet arisen, he did not take a timely appeal from his conviction and sentence. Consequently, the assistance of counsel issue can be reached only through this motion to vacate the conviction.
The moving papers assert that by not inquiring of defendant as to his nationality or advising him of potential immigration status consequences of a drug-related guilty plea, former defense counsel failed to provide defendant with meaningful representation to which he was entitled at the time of his plea. Due to this claimed failure, defendant asserts that his plea was not knowingly or voluntarily entered.
The defense states that defendant and the rest of his family, including both parents and other children, came to this country from Jamaica when defendant was nine years old, and has lived here ever since. The rest of the family reportedly continues to live in the Bronx.
Present defense counsel attempted to obtain an affidavit from former defense counsel as to what if any legal advice had been given to defendant at the time of plea concerning any potential immigration status impact of a guilty plea. Present counsel asserts that former counsel has not provided an affidavit (and has not been shown to be obliged to do so). The defense cites People v. Radcliffe, 298 AD2d 533 [2nd Dept 1992] for the view that no such affidavit is required in order to present a sufficient motion to vacate a conviction on this ground, because it is unrealistic to expect that an affidavit will be provided.
Defendant's own affidavit on the motion to vacate the conviction states that he was arrested on May 28, 2009 and arraigned on or about that date, charged with criminal possession of a controlled substance in the third degree [Penal Law § 220.16(1)]. He was indicted for that and six other counts (two class B felony drug counts, one class C felony drug count, three class E felony conspiracy counts and one class A misdemeanor of endangering the welfare of a child), and was arraigned on the indictment on December 14, 2009. He was represented by the Conflict Defender, through completion of sentencing. At the combined arraignment and plea on December 14, 2009 defendant was permitted to plead to the class D felony, as previously discussed in plea negotiations, all as outlined in the transcript attached as defendant's Exhibit B on motion. During the ensuing plea colloquy the defendant told the court on the record that he had sufficient time to discuss the plea with his attorney and was satisfied with her services.
Thereafter, defendant was sentenced to five years of probation, and certain other incidental provisions not germane to this motion, all as promised on the record at the time of plea.
Defendant states in ¶ 10 of his affidavit that he pled guilty in order to avoid incarceration, given the seriousness of the charges. He further states that he was never told that because of his guilty plea he could be detained by immigration officials. More specifically, defendant asserts that former counsel never inquired into his immigration status, nor did she suggest that he should be concerned about that issue in connection with the guilty plea. He further avers that the issue was not raised in court, either by defense counsel or the court.
In the accompanying memorandum of law, defense counsel first traces the history of the federal and state constitutional right to the effective assistance of counsel in connection with the voluntariness of a guilty plea. The gist of the present motion is based on the assertion that former defense counsel was per se ineffective, under the standard announced in Strickland v. Washington, 466 US 688. In order to be entitled to have his conviction vacated, Strickland held that defendant must show that his attorney performed deficiently as judged by prevailing norms of practice, and that but for this deficiency, the result would have been different for the client. Present defense counsel asserts that part of the claimed deficiency arises from the claim that former counsel made no inquiry of her client about his immigration status, and was unfamiliar with him. Hill v. Lockhart, 474 US 52; People v. Stella, 188 AD2d 318 [1st Dept 1992].
Defense counsel further asserts that the court did not meet its statutory duty under CPL § 220.50(7) to advise the defendant on the record at the time of his proposed guilty plea, that if he were not a citizen he could face potential deportation as a consequence of the plea. As counsel notes, while the statute mandates such an advisement by the court, the statute also states that the absence of such a warning from the court will not affect the validity or voluntariness of the conviction.
See 8 U.S.C. § 1227(a)(2)(B)(I), which states that "Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances Act ( 21 U.S.C. § 802), other than a single offense involving possession for one's own use of 30 grams or less of marijuana, is deportable."
Defense counsel's ineffective assistance of counsel claim rests chiefly on Padilla v. Kentucky, 130 S. Ct. 1473, 176 L. Ed. 2d 284, 2010 US Lexis 2928, decided approximately one month after defendant was sentenced in this court. As relevant here, Padilla held that the Sixth Amendment right to counsel does extend to advice regarding deportation [New York courts had previously held otherwise, as is discussed below], and there is no valid distinction between inaccurate advice and no advice on that subject, in terms of defense counsel's duty to advise the defendant. Where defense counsel fails to give such advice, the representation is deficient. A finding of deficient representation only satisfies the first prong of the Strickland two-prong test as to effective assistance of counsel. The Supreme Court did not reach or decide the second question, whether under the circumstances Padilla had been prejudiced by the deficient advice, because the issue was not passed on by the lower courts. In order to show ineffective assistance of counsel under the federal standard, defendant must meet both prongs of the Strickland test.
Present defense counsel states in the Memorandum of Law that if Bent had known that he would be deported because of his conviction, he would not have entered such a plea. Indeed, counsel suggests that going to trial would have been the only practical alternative to the guilty plea, in the hope that he would be acquitted. Counsel also suggests that defendant's sole motivation for the guilty plea was to avoid incarceration. Unquestionably defendant would have risked substantially more incarceration if convicted of the higher grade felonies after trial. But as noted, defendant's own affidavit does not say that if he had known of the immigration consequences he would not have entered a guilty plea.
In response to the motion, the prosecutor notes that defendant's arrest on the indicted charges occurred when police executed a search warrant at an Ogdensburg, New York residence. During the search, the police saw defendant and another male throwing bags out a second floor bedroom window, as borne out by the officer notes attached to the prosecution motion papers. The officers also saw drugs and drug paraphernalia in the same bedroom at the time of the arrest. During the plea colloquy [transcript page 11, attached to defense motion papers] defendant admitted on the record in open court that he possessed cocaine with intent to sell it.
The People further note that at the time of the plea, former defense counsel would not have seen the arrest report, which listed defendant's place of birth as "Jamaica." A copy of the report was disclosed, under an open file disclosure policy,' at arraignment. While the prosecutor speculates that the report's reference to Jamaica could have been either to Jamaica, New York or Jamaica, West Indies, the probation pre-sentence investigation report lists defendant's birth and citizenship as being Jamaica, West Indies. The court, both attorneys and, presumably, defendant all had access to the PSI report before sentencing. While defendant told the probation officer writing the PSI report that he was an innocent bystander during the charged crimes, he also told the officer that he was having financial problems; the officer believed that defendant was a major player in bringing the cocaine and heroin to Ogdensburg for processing and sale. The question of potential deportation as a result of the guilty plea is not addressed in the PSI report. The prosecutor further notes that the sentencing transcript (which neither attorney has furnished to the court) reflects some discussion as to defendant's correct social security number. The prosecutor states that this discussion invites the conclusion that defendant is a United States citizen, but this fact is not established for purposes of this motion.
The prosecutor makes the further point that both Padilla and Strickland speak of the attorney's duty to advise when the attorney has reason to perceive an issue such as potential deportation. While the prosecutor hypothesizes that former defense counsel probably had no reason to inquire of defendant about his citizenship, as a trigger for the duty to explain about possible deportation, such an opinion is not an established fact at this point.
More persuasively, the prosecution argues that even if, under Padilla, former defense counsel was constitutionally required to advise defendant of potential deportation consequences, this still leaves unresolved the question of prejudice (the second prong under the Strickland ineffective assistance rule). On this question, the prosecution cites cases holding that it is not sufficient for defendant simply to assert that he would have gone to trial if he had been informed of the immigration consequences of a guilty plea. Rather, in the prosecution's view, defendant should be required to assert that he is actually innocent, or that but for former counsel's alleged errors, there is a reasonable possibility that he would not have pleaded guilty and would have insisted on going to trial; and that he would have been acquitted or would have received a lesser sentence if convicted, than he actually received.
See Boakye v. United States, 2010 WL 1645055, 2010 US Dist Lexis 39720 [SDNY 2010]; People v. Hayes, 186 AD2d 268 [2nd Dept 1992]; People v. Cristache , 29 Misc 3d 720 [Crim Ct Queens County 2010].
Similarly, in People v. Xue , 30 AD3d 166 [1st Dept 2006] the court held that a defendant who did face deportation following his guilty plea failed to establish prejudice from not being advised of possible deportation because the evidence of his guilt was overwhelming' where the police directly observed him committing one of the crimes. 30 AD3d at 167. Lastly, the People assert that defendant could also be deported because of his past involvement with drugs, as reflected in the police arrest report and in the PSI report.
In 1995 the New York Court of Appeals held that deportation was a collateral consequence of conviction, and thus the plea court was not required to advise defendant of the possibility of deportation before taking a guilty plea. The court further held that defendant was not denied the effective assistance of counsel by defense counsel's failure to warn of possible deportation. People v. Ford, 86 NY2d 397. Where defense counsel gave incorrect advice about deportation, rather than no advice, the New York courts usually looked to the particular circumstances of the case to see whether defendant had also shown prejudice. Hence, in People v. McDonald, 296 AD2d 13 [3rd Dept 2002] the court held that where defendant did not allege that he would have gone to trial and might have avoided conviction, he was not prejudiced by defense counsel's inaccurate advice about deportation consequences. The Court of Appeals affirmed the rejection of the ineffective assistance claim under Strickland, finding that the second prong of the test had not been met. People v. McDonald , 1 NY3d 109 , 115. Consistently with (and citing) Ford, in People v. Hall , 16 AD3d 848 [3rd Dept 2005] the court held that defendant's waiver of the right to appeal precluded him from asserting that his counsel was ineffective in failing to advise of possible deportation. This omission, said the court, was insufficient by itself to establish ineffective assistance. Accord: People v. Xue , 30 AD3d 166 [1st Dept 2006]; People v. Sanchez-Martinez , 35 AD3d 632 [2nd Dept 2006].
Clearly Padilla v. Kentucky, supra, changed the federal constitutional right to effective assistance of counsel, by doing away with the distinction between direct and collateral consequences of a conviction. The Supreme Court's reasoning was straightforward: defense counsel can quickly determine whether a particular conviction is potentially deportable simply by looking up 8 U.S.C. § 1227. Padilla now requires defense counsel, as part of his or her duty to provide effective assistance to the client, to give advice concerning the deportation question. Since Padilla was decided after defendant Bent's conviction and sentence, the question must be addressed as to whether or not Padilla should be given retroactive effect, which would mean that its rule, not the Ford rule, would govern here.
Both federal and state courts have wrestled with the question, and there is some divergence of opinion, without any appellate authority at this time. See, for example, United States v. Obonaga, 2010 US Dist LEXIS 64954 [EDNY June 30, 2010], citing People v. Bennett , 28 Misc 3d 575 [Crim Ct New York City, Bronx County 2010 (retroactive effect) and People v. Sanchez, 29 Misc 3d 1222A [Sup Ct Queens Co 2010]; People v. Kabre , 29 Misc 3d 307 [Crim Ct New York County 2010]; Gacko v. United States, 2010 US Dist LEXIS 1724, 2010 WL 2076020 [EDNY 2010] (no retroactive effect). The Obonaga court believed that Padilla should be given retroactive effect, but also decided that the issue was rendered moot by the particular written plea agreement citing a guilty plea to a federal crime which carries statutory penalties including deportation/removal.
In a particularly thoughtful opinion about the retroactivity question, Justice Kahn in People v. Hernandez, 2010 NY Slip Op 52259U [Sup Ct New York County 2010] compared the views expressed in People v. Paredes 29 Misc 3d 1202A, 2010 NY Slip Op 51668U [Sup Ct New York County 2010], People v. Garcia , 29 Misc 3d 756 [Sup Ct Kings County 2010], People v. Ortega, 20 Misc 3d 1023A, 2010 NY Slip Op 51679U [Crim Ct New York County 2010], People v. Ramirez, 29 Misc 3d 1201A, 2010 NY Slip Op 51661U [Crim Ct New York County 2010] and People v. Bennett, 28 Misc 3d 580 [Crim Ct Bronx County 2010] (all applying Padilla retroactively) with People v. Sanchez, 29 Misc 3d 1222A, 2010 NY Slip Op 51952[U] [Sup Ct Queens County 2010] and People v. Kabre, [Crim Ct New York County 2010] (rejecting retroactive application).
Based on these precedents, this court believes that Padilla is to be applied retroactively, and the People largely concede for the purposes of this case only, that such is the better reading of the law.
Since nothing in the record or the motion papers establishes that former defense counsel discussed deportation consequences with Mr. Bent before his guilty plea, the court's focus shifts to the second prong of the Strickland effective assistance standard: prejudice to defendant. On exactly this question, though admittedly in the context of a federal case, one court has held that in order to obtain an evidentiary hearing on a motion to vacate his conviction, defendant must establish that he has a plausible claim.' US v. Tarricone, 996 F.2d 1414 [2 Cir 1993]. Under that rule defendant must
"set forth in an affidavit specific facts supported by competent evidence, raising detailed and controverted issues of fact which, if proved at a hearing, would entitle him to relief. See Machbroda v. United States, 368 US 487, 494-95 [1962]; Newfield v. United States, 565 F.2d 203, 207 [2 Cir 1977]. Where the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief,' no hearing is required [under 28 U.S.C. § 2255]. In particular, the Second Circuit has made clear that no hearing is required where (1) the allegations of the motion, accepted as true, would not entitle the petitioner to relief; or (2) the documentary record renders a testimonial hearing unnecessary. Chang v. United States, 250 F.3d 79, 85-86 [2 Cir 2001]." Boakye v. United States, 2010 US Dist LEXIS 39720 [SDNY 2010].
The Boakye court further noted that defendant's conclusory claim that he would have gone to trial but for counsel's alleged ineffectiveness, standing alone, does not establish prejudice under Strickland [citations omitted].
The record in this case reveals that the government evidence against defendant was very strong, since he was observed in possession of the drugs under circumstances supporting proof of intent to sell. Hence, there was scant likelihood that he would have been acquitted if he had gone to trial. More to the point, though, is the fact that defendant got what he hoped for from his plea bargain: he avoided imprisonment. Going to trial would have subjected him to prison terms if convicted, and he still would have been subject to deportation after serving any sentence.
In procedural terms, defendant's motion to vacate is grounded on CPL § 440.10(1)(h), on a claim that his conviction was obtained in violation of his federal constitutional right to the effective assistance of counsel, as defined under Strickland and refined and extended in Padilla. Under CPL § 440.30(4)(b) the court may deny a motion to vacate without conducting a hearing where the motion is based on the existence or occurrence of facts and the moving papers do not contain sworn allegations substantiating or tending to substantiate all the essential facts, as required by subdivision one. That is the case here. In short, defendant has not established that but for defense counsel's omission to advise him concerning possible deportation following a guilty plea, he would have gone to trial and had a reasonable prospect of being acquitted of any deportable charge.
The motion to vacate the conviction is therefore denied, without a hearing. So ordered.