Opinion
11395/1990
07-01-2011
The People of the State of New York, Plaintiff, v. Lorraine Forbes, Defendant.
The People were represented by: Assistant District Attorney Allison Ageyeva The defendant was represented by: Brian Figeroux, Esq.
The People were represented by: Assistant District Attorney Allison Ageyeva
The defendant was represented by: Brian Figeroux, Esq.
Miriam Cyrulnik, J.
The defendant moves to vacate her judgment of conviction, pursuant to Criminal Procedure Law ("CPL") 440.10, alleging that she was denied the effective assistance of counsel due to her attorney's failure to advise her that she could be deported as a result of her conviction. The People filed an affirmation in opposition.
PROCEDURAL HISTORY
On November 19, 1992, the defendant pled guilty to Attempted Criminal Sale of a Controlled Substance in the Third Degree, in exchange for a promised sentence of five years probation. On February 3, 1993, the defendant was sentenced to five years probation.
The defendant has no prior or subsequent criminal history. She entered the United States illegally, and is currently married to a U.S. citizen, and mother to children with U.S. citizenship. According to the People, an Immigration Law Enforcement Specialist stated that the defendant is not currently under removal proceedings.
The defendant now alleges that she was denied the effective assistance of counsel due to her attorney's failure to advise her that she could be deported as a result of her conviction. She cited Padilla v. Kentucky, 130 S.Ct. 1473 (2010), recently decided by the United States Supreme Court, for the proposition that she would not have pled guilty if she knew she could be deported, and would have proceeded to trial instead.
The People oppose, arguing that Padilla should not be applied retroactively to the defendant's application. Nevertheless, the People contend that the defendant has failed to demonstrate any prejudice suffered, in that she has not shown that she would have rejected the favorable plea bargain and proceeded to trial, had she known of any potential immigration consequences.
The court finds the People's substantive arguments persuasive, and denies the defendant's motion in its entirety.
To begin, the People contend that Padilla should not be applied retroactively to the defendant's case. However, while there has been no decisive guidance from the New York Court of Appeals, the Appellate Term, Second Department ruled to the contrary on this issue. In People v. Nunez, 2010 NY Slip Op 20522, 3 (2d Dept 2010), decided approximately three months ago, the court held that the "holding in Padilla should be applied retroactively" to CPL 440 motions. See also
People v. Bevans, 2011 NY Slip Op 50395U (Sup Ct, Kings County 2011); People v. Clarke, 2010 NY Slip Op 33243U (Sup Ct, Kings County 2010) (adhering to the analysis from People v. Bennett, 2010 NY Slip Op 20194, 4 [Crim Ct, Bronx County 2010] and People v. Hubenig, 2010 US Dist LEXIS 80179, 20 [ED Cal 2010] that the U.S. Supreme Court intended the discussion regarding opening the "floodgates" to litigation challenging guilty pleas to indicate that Padilla should be applied retroactively); People v. Garcia, 2010 NY Slip Op 20349 (Sup Ct, Kings County 2010); People v. DeJesus, 2010 NY Slip Op 52259U (Sup Ct, NY County 2010). But see People v. Kabre, 2010 NY Slip Op 20291 (Crim Ct, NY County 2010) (finding that Padilla announced a "new rule of criminal procedure rather than applied settled law to a new set of facts" and is therefore not a retroactively applicable "watershed change"); People v. Andrews, 2011 NY Slip Op 31216U (Sup Ct, Kings County 2011); People v. Ebrahim, 2010 NY Slip Op 32794U (Sup Ct, Wayne County 2010).
Therefore, the court will adhere to the Appellate Term, Second Department ruling, advocating the retroactive application of Padilla v. Kentucky.
Nevertheless, the ineffective assistance of counsel claim, as it pertains to the failure to advise the defendant about possible immigration consequences upon pleading guilty to a crime, must still fail, as the defendant has failed to satisfactorily allege prejudice as a result of her lack of information at the time of allocution, in that she has not sufficiently demonstrated that she would have abandoned her guilty plea and proceeded to trial. The court finds that her contentions lack credibility given the circumstances of the case and the plea bargain deal which she received.
Any failure by her then attorney to advise the defendant regarding her possible deportation has not been shown to constitute ineffective assistance of counsel. The applicable determination includes the federal standard established in Strickland v. Washington, 466 US 668 (1984), which requires a showing of prejudice suffered by the defendant, namely that "defense counsel's representation fell below an objective standard of reasonableness and there is a reasonable probability that, but for counsel's errors, the defendant would not have pleaded guilty." People v Ramirez, 2010 NY Slip Op 51661U, 4 (Crim Ct, NY County 2010).
Similarly, the defendant has failed to demonstrate ineffective assistance under the New York standard of "meaningful representation," which affords the defendant even greater protection than the federal standard in Strickland v. Washington, that there was anything other than diligent representation by her attorney. See People v. Caban, 5 NY3d 143, 155-156 (2005); see also People v. Baldi, 54 NY2d 137 (1981); People v. Stultz, 2 NY3d 277, 287 (2004) (holding "a defendant's showing of prejudice [to be] a significant but not indispensable element in assessing meaningful representation," focusing instead on "the fairness of the proceedings as a whole").
Specifically, the defendant has not convinced the court that if she had been told about a possible deportation risk, she would have not pled guilty. Given the fact that the particular plea offer was a rather advantageous one, it cannot be said that the defendant begrudgingly accepted it. See People v. Robles-Mejia, 2010 NY Slip Op 50808U (Sup Ct, Bronx County 2010). As asserted by the People, there was strong evidence against the defendant here in terms of observations by the police and contraband property recovered directly from her person, which when combined, would likely lead to a conviction. Particularly when viewed in the light of the potential 25 years incarceration the defendant faced if convicted of the top count after trial, five years of probation was a desirable outcome for the defendant's case. See also People v. Brown, 235 AD2d 563 (3rd Dept 1997), lv denied 89 NY2d 1032 (1997) (denying defendant's ineffective assistance of counsel claim based on his "extremely advantageous plea" and a record "devoid of any evidence which would cast doubt on the effectiveness of counsel").
Additionally, as the People note, the defendant's simultaneous claims that her then counsel initially told her either not to be concerned about possible immigration ramifications, or neglected to say anything at all, followed immediately thereafter by a warning to leave the courthouse at once in case immigration authorities should attempt to pursue her, simply strains the credibility of her case. Upon review of the case file, the court also found several motions filed by defense counsel on the defendant's behalf during the pendency of the case, further detracting from the defendant's claims that he ineffectively assisted her during the proceedings.
Moreover, according to the People, the defendant is not currently in danger of deportation. Furthermore, the defendant's guilty plea was entered close to 19 years ago, and her term of probation imposed shortly thereafter. There is no indication why the defendant should suddenly seek to have her conviction vacated in order to seek U.S. citizenship now, when she has had ties to this country for numerous years through her children and her husband. Though not dispositive of the substantive issues here, it certainly does not bolster the defendant's credibility in this case that she has allowed such a lengthy period of time to elapse before filing this motion. See People v. Torres, 2010 NY Slip Op 33167U, 6 (Sup Ct, Kings County 2010) (holding that defendant's 15 year delay in raising motion to vacate judgment without any explanation to be "unjustifiable" and relying on People v. Nixon, 21 NY2d 338 (1967) to conclude that a "lengthy delay can be considered in evaluating the validity and legitimacy of a post-judgment motion"); see also People v. Harris, 2011 NY Slip Op 30144U (Sup Ct, Kings County 2011) (finding that defendant's delay in filing post-judgment motion 12 years after his conviction, and eight years after his appeal, detracted from defendant's credibility, and factored into ultimate denial of motion to vacate judgment).
Therefore, having weighed all of the considerations in this case, the court finds that the defendant has failed to demonstrate precisely how the outcome would have been different, other than mere speculation that she would not have pled guilty. Given the favorable plea bargain offered to her, the court is not convinced that the defendant would have unequivocally opted to plead not guilty and proceed to trial.
Accordingly, the defendant's motion to vacate her judgment is denied.
The defendant's right to an appeal from the order determining this motion is not automatic except in the single instance where the motion was made under CPL 440.30 (1)(a) for forensic DNA testing of evidence. For all other motions under article 440, the defendant must apply to a Justice of the Appellate Division for a certificate granting leave to appeal. This application must be filed within 30 days after the defendant has been served by the District Attorney or the court with the court order denying this motion.
The application must contain the defendant's name and address, indictment number, the questions of law or fact which the defendant believes ought to be reviewed and a statement that no prior application for such certificate has been made. The defendant must include a copy of the court order and a copy of any opinion of the court. In addition, the defendant must serve a copy of her application on the District Attorney.
This constitutes the decision and order of the Court.
Brooklyn, New York
_____________________________
Miriam Cyrulnik
A.J.S.C.