Opinion
10335/98.
Decided March 15, 2011.
Daniel S. Kratka, Esquire, Wilens Baker, P.C., for the defendant.
Sherene A. Crawford, Esquire, Assistant District Attorney, for the prosecution.
Defendant Gleni de Jesus stands convicted by plea of guilty of one count of attempted criminal sale of a controlled substance in the third degree (PL §§ 110/220.39
Defendant had formerly been known as Altagracia Hernandez, reflecting her middle name and her mother's maiden name.
). She now moves to vacate her judgment of conviction pursuant to Criminal Procedure Law § 440.10(1)(h) on the ground that she received ineffective assistance of counsel at the time of her plea. Specifically, defendant alleges that the failure of her trial counsel to advise her that her conviction would subject her to automatic deportation pursuant to 8 USC § 1227(a)(2)(B)(i) violated her right to effective assistance of counsel under Padilla v. Kentucky, 559 US ___, 130 SCt. 1473 (2010). The People oppose the motion.
On December 10, 2010, this court granted defendant's motion, to the extent of issuing an order finding that Padilla applied retroactively to the collateral review of defendant's case and directing that a hearing be held on the issues of whether defendant's plea counsel's representation fell below an objective standard of reasonableness under Strickland v. Washington, 466 US 668, 688 (1984), and whether, as a result of counsel's representation, defendant suffered prejudice ( see Hill v. Lockhart, 474 US 52, 59). ( See People v. Gleni De Jesus, 30 Misc 3d 1203(A), 2010 WL 5300535, 2010 NY Slip Op. 52259 [Sup. Ct. NY Co. Dec. 24, 2010][written decision explaining December 10, 2010 Order][ De Jesus I]). On February 2 and 15, 2011, this court held that hearing, and this decision and order contains the court's findings of fact and legal conclusions following the hearing. For the reasons stated, defendant's motion to vacate the judgment is denied.
I. FACTUAL AND PROCEDURAL BACKGROUND
The factual and procedural background of the case is set forth in detail in De Jesus I, and familiarity with it is presumed. Only the portions pertinent for present purposes will be restated here.
On July 29, 1998, an officer of the New York Police Department observed defendant hand Theo Stratus, an individual charged separately, a tin of cocaine in exchange for a sum of United States currency. The officer arrested defendant and placed her in the rear of his patrol car. He later recovered two glassines of heroin and a tin of cocaine from the seat where defendant had been sitting. On December 2, 1998, defendant was indicted on charges of criminal sale of a controlled substance in the third degree (PL § 220.39) and criminal possession of a controlled substance in the third degree (PL § 220.16), both class B felonies, in connection with the incident.
On May 4, 1999, pursuant to a plea agreement, defendant pleaded guilty to one count of attempted criminal sale of a controlled substance in the third degree (PL §§ 110/220.39[1]) in full satisfaction of the indictment and received a sentence promise from the court of five years' probation with intensive supervision. During the plea allocution, the court offered the following warning to defendant as to the immigration consequences of her plea:
The justice who took defendant's guilty plea and imposed sentence has since retired.
THE COURT:Madam, since you were not born in this country, I must advise you that if you are not a citizen or a resident alien, as a result of the plea of guilty, you may be deported. Now have you understood everything that I've said through the interpreter?
DEFENDANT:Yes.
(Supplemental Affirmation of Daniel S. Kratka, Esquire dated May 19, 2010 [Kratka Affirm.], Exh. F, Transcript of plea proceedings, May 4, 1999 [Tr., May 4, 1999], at 6-7).
On June 24, 1999, defendant was sentenced to five years' probation with intensive supervision, in accordance with the plea promise.
In 2010, defendant filed the instant motion, arguing that her conviction should be vacated on ineffective assistance of counsel grounds, based on counsel's alleged failure to advise her that her conviction would lead to automatic deportation. Defendant claims that she would not have pleaded guilty had she known that she would be subject to mandatory deportation as a result.
The motion was initially filed by predecessor counsel in January 2010, prior to the Supreme Court's issuance of its Padilla decision, and subsequently refiled by present counsel on Padilla grounds thereafter.
For several months during the pendency of this motion, the parties discussed with the court a possible consensual resolution of the motion, but the effort was ultimately unsuccessful.
After initially conceding the applicability of Padilla to defendant's case, the People reversed their position, resulting in the retroactivity litigation resolved by
De Jesus I, and in the CPL § 440.30(5) hearing held by this court.
II. THE HEARING
At the hearing, the defense called the defendant, and the People presented the testimony of defendant's plea counsel, Andres Manuel Aranda, Esq., and Aranda's law partner at the time, Jorge Guttlein, Esq. I found the attorneys generally credible, notwithstanding their lack of memory of the specifics of Ms. De Jesus' case, as they testified based upon their longstanding customs during their years of practice, and were generally consistent with each other. While the defendant was also credible in many respects, as indicated by my findings below, her conduct belies her current claims of prejudice.
The court took judicial notice of various items in the court file in this case, including the pre-sentence investigation report of the Department of Probation and a letter to the court from the United States Customs and Border Protection Deferred Inspections Unit dated February 12, 2009 regarding removal proceedings pending against defendant. The court also took judicial notice of the result of disciplinary proceedings against Attorney Aranda, as reflected in Matter of Aranda , 32 AD3d 58 (1ST Dept. 2006).
A. Findings of Fact
1.Defendant's Immigration History
Most of the facts relevant for present purposes are not in dispute. Ms. De Jesus was born and grew up in the Dominican Republic, where she had to leave school after competing the sixth grade due to the family's inability to finance her further studies. She was sexually and physically abused by her stepfather, and married at an early age. She testified that her husband also was verbally abusive to her, and so in August 1993, she left her country, and her five children, and came to New York City, where she lived with her sister and worked as a waitress. She does not dispute that her entry into this country at that time was illegal.
In February 1994, defendant married her current husband, David De Jesus. In or around 1994, defendant returned to the Dominican Republic to live for approximately one year, during which time she made application for legal permanent residence (LPR) in the United States. In 1996, she received her LPR status. That same year, her mother died and she made arrangements with her husband to have her five children receive visas to enter this country legally. In 1999, she was convicted in the instant matter and sentenced to a term of five years' probation. In 2001, her children became legal permanent residents and moved to New York to live, and they became United States citizens in 2007. In early 2008, De Jesus successfully renewed her LPR status with the Immigration and Customs Enforcement unit (ICE) of the Department of Homeland Security (DHS).
Subsequent to her conviction in this case, defendant made six or seven trips back to the Dominican Republic. In April 2008, on returning from a trip to Santo Domingo to visit her daughter on the occasion of the daughter's friend's death, she was stopped and questioned by the Customs and Border Patrol agents of DHS at John F. Kennedy Airport. Officials confiscated her LPR registration (green card) and requested that she return to their deferred inspections office at JFK the next day with documentation relating to her conviction in this case.
De Jesus did not return to the DHS office as requested, and instead consulted an immigration attorney. On showing him a certificate of her conviction, the attorney told her that she had pleaded guilty to an aggravated felony and that she should not return to the airport because DHS was going to deport her. By February 12, 2009, defendant had been placed in removal proceedings as a criminal alien due to her conviction in the instant case. In January 2010, defendant's initial motion to vacate the judgment followed.
See letter dated February 12, 2009 from U.S. Customs and Border Protection, Deferred Inspections Unit, American Airlines Terminal Eight, JFK International Airport, to New York County Supreme Court, requesting a copy of the criminal complaint or indictment in the instant case, which letter was judicially noticed by this court at the hearing.
2.Defendant's Arrest and Litigation of the Instant Case
On her arrest in July 1998, defendant, then 37 years old, was assigned counsel from the Legal Aid Society. At no time did the attorney discuss with her the immigration consequences of a disposition of the case, nor tell her that she faced mandatory deportation if convicted for the crime charged, as an aggravated felony ( 8 USC § 1227[a][2][A][iii]) and controlled substance offense ( 8 USC § 1227[a][2][B][i]). On the recommendation of a friend, defendant later sought the services of Andres Manuel Aranda, Esquire, to represent her, due to communications difficulties she felt she was having with her original counsel.
a. The Aranda and Guttlein Firm's Practice in 1999
At that time, Aranda and Guttlein, who practiced together from 1987 through 2006, maintained a very busy criminal law practice in the federal and state courts in New York City, involving a high preponderance of drug cases. Aranda handled criminal cases in state court in Manhattan, while Guttlein handled the cases in the outer boroughs and in federal court. Handling fifteen to twenty cases a day, Aranda would frequently have minimal time to speak with his clients before court appearances, and frequently had others cover cases for him when he was unable to appear. He would often appear in court without his case file and would report on developments by telephone to Guttlein in the office, who would note them on the client's file.
Most of the notations on the defendant's file maintained by the office (People's Exh. 1) were not made by Aranda.
During 1999, more than fifty percent of the firm's clients were non-citizens. Guttlein also conducted an active immigration law practice. When Aranda, who did not consider himself to be an immigration expert, encountered problems or had questions in that area, he consulted with Guttlein or referred his clients to him. He did not generally consult Guttlein unless his client had raised a specific question about immigration issues. Guttlein did not generally intercede in Aranda's cases to discuss immigration matters, absent a request from Aranda.
In 1999, the Immigration and Naturalization Service (INS) would regularly file detainers on non-citizens who were serving incarceratory sentences, and the Aranda and Guttlein firm had many clients for whom the firm filed appeals from immigration court orders of deportation. It was not until the last two years that Aranda heard of INS actively arresting probationers.
During the years 1998 and 1999, the firm had no set policy or procedure for handling immigration issues attendant to their non-citizen clients' criminal cases. Generally, the attorneys would not discuss immigration consequences of a conviction until after a plea offer had been obtained in the case. Aranda and Guttlein each took different approaches to dealing with the immigration consequences of their clients' criminal convictions.
Guttlein was aware that after the effective dates of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) in 1996 and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) in 1997, the previously available broad discretionary powers of the Attorney General to waive deportation under section 212(c) of the Immigration and Nationality Act (INA) ( 8 USC § 1182[c]) had been significantly curtailed, and, in cases in which the non-citizen had been convicted of an aggravated felony, eliminated altogether ( see 8 USC 1229b[a][3]). He was aware that well before these enactments, as far back as 1988, narcotics trafficking was deemed to be an aggravated felony ( see De Jesus I, Slip. Op. at *10; 8 USC § 1101[a][43][B]). With his own clients, therefore, Guttlein attempted to assure that any guilty plea would not include any charge of narcotics sale, attempted sale of narcotics or any other crime deemed to be an aggravated felony. When a plea to a non-aggravated felony could not be obtained, and a client was entering a plea to sale of a controlled substance, Guttlein would tell his clients that they could be deported as a result of their pleas, because he was aware that the 212(c) waivers had clearly been eliminated for such convictions by IIRIRA in 1997 and that deportation was mandatory. When clients were pleading to controlled substance offenses ( 8 USC § 1227[a][2][B][i]) which did not appear to be aggravated felonies, Guttlein would advise them to avoid coming to the attention of the INS by refraining from overseas travel and to apply for citizenship within a few years after their conviction. Depending upon the client's situation and the strength of the prosecution's case, the length of the sentence might be a more important factor in the plea negotiations than consideration of the immigration consequences.
Guttlein also knew that the availability of 212(c) cancellation of removal waivers in cases involving narcotics possession was unclear at that time. It remained so until the Supreme Court issued its decision in Lopez v. Gonzalez, 549 US 47 (2006), holding that narcotics possession was not an aggravated felony.
Aranda, on the other hand, was not knowledgeable about IIRIRA or the INA in 1999, and only became so after his return to practice in 2008. He was not then, and is not currently, familiar with the provisions of the 1995 statute requiring the court to advise a defendant who enters a guilty plea to a felony of the immigration consequences of that decision. (CPL § 220.50). In 1999, his understanding of the immigration consequences of a conviction for a drug offense, whether sale or possession, was that a guilty plea involving a prison sentence insured deportation, while a disposition carrying a sentence of probation did not always do so.
The court takes judicial notice that Aranda had been suspended from the practice of law by the Appellate Division, First Department from July 2006 to July 2007. ( Matter of Aranda, supra).
Guttlein, on the other hand, testified that removal proceedings attendant to state criminal convictions were so much a part of the firm's practice by 1999 that Aranda had to have known at that time that conviction for an aggravated felony eliminated the possibility of discretionary relief from removal.
The only immigration advice he might have given to his clients who were contemplating guilty pleas was that they should not fly out of the country because their reentry might cause problems with INS, and possibly that they should wait for a period of time before applying for citizenship. He could not recall when he began giving that advice to his clients, but believed it possible that it was not until after September 11, 2001. He was confident that he did not include any other warnings in his advisory statement, however.
In contrast to the success Guttlein often had with the Bronx County District Attorney's office in negotiating pleas to possessory crimes for clients charged with drug sales, Aranda experienced significant difficulty in obtaining such dispositions for firm clients prosecuted by the Manhattan District Attorney's office. Aranda, like his partner, had no specific recollection of defendant or her case, or of any specific advice he had given her about the matter.
b. Aranda's Representation of Defendant
On her initial meeting at Aranda's office on January 6, 1999, De Jesus met with Guttlein, who conducted the intake interview on the case. Although he testified that he had no recollection of the meeting, and merely acknowledged that the interview notes were in his handwriting, Guttlein testified to his customary practice, which was to inquire as to the client's family situation, employment situation and immigration status. That he made such inquiry that day is supported by his notation of "LPR" on the file for that date. Guttlein confirmed defendant's testimony that no discussion of the immigration consequences of a guilty plea occurred at that time through his recounting of his usual practice, which was to wait to discuss them until such time as a client was presented with disposition options by the prosecution. He told her to return to meet with Aranda, who was to represent her, the following week.
A few days after her meeting with Guttlein, De Jesus returned to the firm's office to meet with Aranda in advance of her next scheduled court appearance. At that time, Aranda reviewed the charges with her and told her not to worry and that there would be an acceptable resolution. She retained him at that time. On January 12, 1999, Aranda appeared in court with defendant, and again told her not to worry about the outcome. I credit defendant's detailed testimony, uncontroverted at the hearing, that he did not discuss the immigration consequences of a guilty plea to the charge with her at either of his meetings with her in January. During the ensuing months, Aranda did not usually appear personally for calendar calls of the case. When defendant would call him to discuss the case, he would always tell her not to worry, and that everything would be all right, but did not discuss details of the case.
On May 4, 1999, the date of the defendant's guilty plea, Aranda spoke with De Jesus in the courthouse lobby prior to their appearance in court. He told her that she had nothing to worry about, since he had already reached an agreement in the case with the assistant district attorney regarding a guilty plea to a reduced charge that would avoid any jail time. He also told her that she could face a lengthy prison sentence if she were convicted at trial, and advised her to accept the plea offer. The evidence presented at the hearing convinces me that Aranda did not inform defendant that she would be subject to mandatory deportation by virtue of her guilty plea to a charge of attempted criminal sale of a controlled substance in the third degree.
Defendant maintained in her testimony at the hearing that when so advised by Aranda, she objected to taking the plea, insisted that she was not guilty and told him that she wanted to go to trial. His response, she maintained, was that she should not go to trial and that she must answer "Yes" to all of the questions during the plea colloquy with the judge. She recalled that at one point in the colloquy, she first denied involvement, but Aranda told her to remember his advice and admit her involvement. She contended she did what Aranda told her to do, but was confused during the plea allocution.
Aranda, on the other hand, while having no recollection of his conversations with defendant on the day of the plea, averred that his practice was to discuss the plea with the client to insure she understood it, explain what questions the judge would ask, mention that the client would have to be interviewed by the Department of Probation and describe the obligations of a probationer. He maintained that he would never counsel a client to simply answer affirmatively all of the questions put to her by the court. He explained that in advising his clients as to whether or not to plead guilty, he would always take into account the strength of the prosecution's case, including factors such inconsistencies in the police testimony, whether there had been a confirmatory identification, whether the client was alleged to have engaged in the hand-to-hand transfer of the drugs and whether physical evidence, especially matching drugs, had been recovered from the client or from the patrol car where she had been sitting. He also considered whether the client had a criminal record, what sort of employment history she had and whether she would have been eligible for the shock incarceration program. And he considered that a first offender faced a huge risk in deciding to try a class B felony drug case. He would explain to the client that the court could reject the plea agreement if the defendant was unwilling to admit her role in the crime. Aranda insisted that he would never ask a client to take a plea if the client wanted to go to trial.
In this court's view, Aranda's version of these events is the more credible. His recitation falls far short of a model performance for his client, but that is one of the reasons it has the ring of truth. It was also supported by the damage done to defendant's credibility by her own prior inconsistent statements to the Department of Probation in the pre-sentence report (noting defendant denied her involvement in the crime but pleaded guilty due to the fact that she "didn't want to go to trial and didn't want to continue not knowing'" [New York City Dept. of Probation Pre-sentence Investigation Report, June 21, 1999 [PSI], at 3]), and in her affidavit submitted in support of her original motion to vacate the judgment (stating that defendant had heard that if she were found guilty after trial, she could be put in jail for many years [Affidavit of Gleni De Jesus, sworn Nov. 17, 2009, ¶ i]).
Although current defense counsel withdrew the previously filed motion when he entered the case in May 2010, the court ruled during the hearing that defendant's statement in her earlier affidavit would be available for impeachment purposes only on the issue of her credibility.
c. Defendant's Guilty Plea and Subsequent events
In any case, defendant agreed with Aranda's recommendation to plead guilty and avoid incarceration, and so she entered a guilty plea. As defendant acknowledged, she did not want to go to jail or leave her husband and give up contact with her children.
When the court said something during the colloquy that she felt mischaracterized the factual particulars of the narcotics transaction, she disagreed with the court, but when he adjusted the factual statement, she concurred. At no time did she express a desire to go to trial. When the court told her that if she were not a United States citizen or a legal permanent resident, she may be deported, she said she understood.
Subsequent to taking the plea, the defendant was interviewed by the Department of Probation and explained her guilty plea as set forth above, never telling the officer that she did not want to plead guilty or wished to withdraw her plea, and never suggesting that she would have preferred to go to trial. That same day, defendant claims she contacted her family's attorney, Mike Cohen, and told him what had occurred. He told her that because she had pleaded guilty to a felony, she was "lost" and could do nothing about it. Nonetheless, defendant did not question Aranda about her situation when she saw him at her sentencing the following month, nor did she move to withdraw her plea when she was before the court. Finally, at no time during her five-year probationary term, nor in the succeeding five years, did she seek to vacate the judgment.
B. Conclusions of Law
1. Legal Standards
In order to establish a violation of the right to the effective assistance of counsel under the federal Sixth Amendment standard, a defendant must satisfy Strickland's two-pronged standard, demonstrating first, "that counsel's representation fell below an objective standard of reasonableness" ( Strickland v. Washington, supra, 466 US at 688), and second, that the defendant suffered prejudice, that is, "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." ( Id., at 694).
A defendant's guilty plea will be upheld if it is a voluntary and intelligent choice made with the understanding of the various alternative courses of action available. ( Hill v. Lockhart, supra, 474 US at 56). Where the conviction was by plea, a defendant's allegations of ineffective assistance of counsel "must be sufficient to show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.'" ( Id., at 59; People v. McDonald , 1 NY3d 109 , 115).
At a hearing on a motion to vacate judgment pursuant to CPL § 440.30(5), the defendant has the burden of proving by a preponderance of the evidence every fact essential to support the motion. (CPL § 440.30).
2.Objective Standards of Reasonableness
As this court stated in De Jesus I, in addressing the first Strickland standard, analysis must be given to the prevailing professional norms extant at the time of the defendant's guilty plea. ( De Jesus I, Slip Op. at *16, citing Padilla v. Kentucky, supra, 559 US ___, 130 SCt. at 1483-83). Last year, the Supreme Court in Padilla held that "[f]or at least the past 15 years, professional norms have generally imposed an obligation on counsel to provide advice on the deportation consequences of a client's plea" ( Padilla v. Kentucky, supra, 559 US ___, 130 SCt. at 1485). The Court held that where the consequences of a defendant's plea may readily determined under well-settled provisions of the immigration statute, and the deportation result is "truly clear, . . . the duty to give correct advice is equally clear." ( Id., at 1483).
It is not sufficient to say that because the conventional wisdom among defense attorneys at the time of defendant's plea was that defendants receiving probationary sentences would not be detained and deported, or because that was the actual practice of the INS at the time, and many defense attorneys did not provide deportation advice to their clients who entered guilty pleas to aggravated felonies, the prevailing professional norm was that no such advice was required. Rather than embracing a descriptive standard, the prevailing professional norm for Strickland purposes is the normative, or aspirational standard, here, derived from the clear mandate of the statute and the views expressed in bar association standards, treatises, guidelines and other authorities cited by the Padilla Court and dating back to 1993. ( De Jesus I, supra, Slip Op. at *14, citing Padilla v. Kentucky, supra, 559 US ___, 130 SCt. at 1482-83).
In this case, admittedly, neither Aranda nor Guttlein advised De Jesus, under law which was well-settled at the time of her plea, that her conviction for attempted criminal sale of a controlled substance in the third degree would constitute an aggravated felony under the INA, subjecting her to mandatory deportation, without the possibility of cancellation of removal. Accordingly, defendant has demonstrated that counsel's performance fell below the objective standard of reasonableness according to professional norms and the first prong of the Strickland standard is satisfied.
3. Prejudice
With respect to the second Strickland prong, defendant argues that had counsel properly advised her that she would be subject to deportation, she would have rejected the plea and taken her chances at trial. Defendant maintains that since she was actually innocent of the charges, without counsel's deficient performance, she would have gone to trial. Defendant further contends that the judge's deportation warning did not mitigate counsel's failure, since she was confused by it. She argues that because all of her family ties were in New York, while none were in the Dominican Republic, she never would have entered into an agreed disposition of the case which guaranteed her removal to the Dominican Republic. Finally, defendant maintains that had Aranda not failed to advise her about the strengths and weaknesses of the prosecution's case, particularly the conflicting versions of the hand-to-hand transfer of the narcotics, she would have forgone the plea agreement and proceeded to trial.
At the hearing, the defendant must establish a reasonable probability that but for counsel's errors properly to advise her, she would have rejected the plea offer and insisted on going to trial. ( See Hill v. Lockhart, supra; People v. McDonald , 1 NY3d 109 , 114-15). Although I credit defendant's testimony in many respects, her claim of prejudice is unconvincing from several vantages.
First, with respect to her claim of innocence, the evidence revealed that at the time defendant engaged in the plea colloquy, she testified under oath, assisted by the Spanish interpreter, that she wished to plead guilty ("Yes, of course" [Tr., May 4, 1999, at 7]). She acknowledged that she had knowingly handed drugs to another individual who handed them to the buyer, hesitating only to clarify that she had had no direct contact with the buyer herself, but then immediately admitted her role when the judge clarified that he was inquiring about an indirect contact:
THE COURT: Ms. Hernandez, is it true that you handed some drugs to another individual, knowing that they were drugs, who then handed them to this other individual in exchange for US currency? Is that true?
THE DEFENDANT: That I gave it to someone?
THE COURT: Yes.
THE DEFENDANT: But I didn't give it to that guy.
THE COURT: No. You gave it to somebody else who gave it to that guy?
THE DEFENDANT: Yes.
(Tr., May 4, 1999, at 5). She further acknowledged that she understood that she was as guilty as the person who had handed the drugs to the buyer ( Id.,); and that she had not been forced or coerced to plead guilty ( Id., at 6).
Despite this admission of guilt, during her pre-sentence interview later that day, defendant denied her involvement in the crime to the interviewing probation officer, but explained that she pleaded guilty because she "didn't want to go to trial and didn't want to continue not knowing.'" (PSI, at 3). She did not complain to the court at sentencing several weeks later that she wanted to withdraw her plea because she was not guilty, nor did she move to vacate the judgment on that ground after speaking with Attorney Cohen, nor at any point during the ensuing eleven years. For these reasons, I find that she has failed to carry her burden of demonstrating that her lack of guilt of the charges would have impelled her to seek a trial, but for Aranda's error.
In addition, on hearing the judge's admonition that "since you were not born in this country, I must advise you that if you are not a citizen or a resident alien, as a result of the plea of guilty, you may be deported," (Tr., May 4, 1999, at 6-7), defendant, who testified at the hearing to having been confused by the statement, told the judge that she understood him, rather than questioning or challenging him about it. De Jesus was attentive enough to have challenged the judge on his recitation of the facts of the criminal transaction when she felt he had misrepresented her role in it, but she did not raise any question with him regarding his statement as to deportation which she now claims to have found confusing. Defendant also failed to ask Attorney Aranda, the investigating probation officer or her family attorney, Mike Cohen, what the judge had meant by the statement when she encountered each of them later that day to discuss her case.
In fact, the advisory provided by the court was inaccurate, and reflected neither the text of CPL § 220.50(7) nor the removal law of the United States, which provides for deportation of all non-citizens, including legal permanent residents, who commit aggravated felonies. As defendant observed during the hearing, she was a legal permanent resident at the time and had she not been confused, could have felt that the warning did not pertain to her. Because it was misleading and inaccurate, I do not find that the warning given by the judge in any way mitigated counsel's own failure to provide accurate advice on the subject. ( Cf. People v. Contant , 77 AD3d 967 [2d Dept. 2010][court's advice that plea "may" subject the defendant to deportation held not misleading and sufficient to put defendant on notice that guilty plea had immigration consequences so he could pursue issue further with counsel, possibly obviating prejudice from attorney's error]).
CPL § 220.50(7) provides that prior to accepting a plea of guilty to a felony offense, the court must advise the defendant on the record that "if the defendant is not a citizen of the United States, the defendant's plea of guilty and the court's acceptance thereof may result in the defendant's deportation, exclusion from admission to the United States or denial of naturalization pursuant to the laws of the United States."
Nonetheless, the nature of defendant's participation in the exchange, as well as her lack of response to it thereafter, indicates that deportation was not the most significant consideration for her at that time. Had she been concerned about possible deportation, surely she would have inquired of the judge, her attorney, the probation officer or Mike Cohen, and surely she could have raised the issue with the court at the time of sentence.
Similarly, defendant's words and actions since her plea have not been consistent with her current contention that had she known that she would be deported, she would not have pleaded guilty. She reported for five years to probation without raising any concerns about her immigration status, traveled outside the country several times and renewed her LPR status. These are not the actions of one whose principal concern is the possibility of deportation. ( Cf. United States v. Couto, 311 F.3d 179, 188 n. 9 [2d Cir. 2002][prejudice found where defendant's "whole behavior was designed to avoid deportation," as evidenced by her immediately seeking to withdraw plea on learning of the deportation consequences]; People v. Williams , 72 AD3d 1347 [3d Dept. 2010][defendant repeatedly expressed reservations about pleading guilty because it could lead to his deportation, and only agreed to accept plea offer after receiving counsel's assurance that no deportation would result]).
The Probation Department reported De Jesus's conviction to the INS at the time of her interview for the PSI.
Further, defendant's assertions about her relative community ties in the United States and in the Dominican Republic, i.e., that at the time of her conviction, she was happily married to her American husband, David De Jesus, was employed as a waitress, had no ties to the Dominican Republic and would have sought to avoid being returned to the country where her only connection was her estranged, abusive husband, even if it meant serving a prison sentence, are not supported by the evidence. The pre-sentence investigation report indicates that at the time of her conviction, defendant's five children, her sister, Yolanda, and at least two of her half-brothers, Luis and Rafael, were living in the Dominican Republic. (PSI, at 4). Further, defendant's own testimony established that her five children were still in the Dominican Republic at the time of her guilty plea (Transcript of hearing, Feb. 2, 2011 [Tr., Feb. 2, 2011], at 20), and that she had returned to the country six or seven times subsequent to her plea, even after the children had moved to the United States, starting in December 1999 and concluding in April 2008 (Tr., Feb. 2, 2011, at 47-48). Finally, according to the pre-sentence report, at the time of her plea, defendant was separated from her American husband, David De Jesus, and was self-employed, having only reportedly worked at a restaurant for four months during 1996. (PSI, at 4, 5). Her claim that all of her social ties in 1999 were in the United States and that she had no ongoing connections to her country or origin is, therefore, not credible.
With respect to the strength of the prosecution's case, I credit Aranda's testimony that he would have considered the various factors present in the case, here including the facts that it was an observation sale; that it took place at night; that no confirmatory identification procedure was conducted; that the observing officer's representation in the criminal court complaint that he had seen defendant hand the drugs to the apprehended buyer was contradicted elsewhere in his paperwork by his representation that he observed her hand drugs to a second individual, who then gave the drugs to the buyer; and that the finding of drugs in a patrol car is weaker inculpatory evidence than the recovery of drugs on the person of a defendant.
On the other hand, I also believe he considered the facts that the observation post officer would testify that he had been observing defendant and another individual engaging in hand-to-hand transactions at the same location for approximately half an hour prior to defendant's arrest; that there would be police testimony that a shiny tin package of package of cocaine matching the two tin packages recovered from the floor of the car driven by the alleged buyer was recovered from the seat of the patrol car where defendant had been sitting; that his client, the mother of five children and a working woman, would be facing mandatory state prison time if convicted; and that De Jesus was then too old to be admitted to the shock incarceration program if convicted at trial.
Under these circumstances, as Jorge Guttlein testified, these attorneys may well have urged their client to take an extremely favorable, non-jail plea, notwithstanding the immigration consequences, and Ms. De Jesus, even had she been properly informed, may well have decided to take the plea and avoid the possibility of a minimum sentence of one-to-three years in state prison. In any case, defendant has not established a reasonable probability that, but for Aranda's failure to inform her of the weaknesses in the People's case, she would have insisted on going to trial.
Accordingly, for all of these reasons, I find that defendant has failed to carry her burden of demonstrating a reasonable probability that she would not have entered the plea and would have insisted on going to trial absent counsel's ineffective assistance.
C. Addendum
The court is compelled to note that notwithstanding defendant's credibility problems on the issue of prejudice, this case presents the stark example of an extremely sympathetic defendant, a very small player in a street drug sales operation on a single occasion years ago, who has been law-abiding since her arrest and is supported by strong family ties in the United States, and presently without similar ties in her country of origin, who is confronting the harsh consequences of the current federal immigration law and policy, exacerbated by changes in removal policy by DHS in the post-September 11th era. This court is not without its regrets that current legal standards do not afford it more flexibility in addressing these issues. It is not for this court to fashion such changes in constitutional law, however. But the case does offer a primer on the virtues of parties seeking to resolve similar conflicts with an attitude of flexibility and the desire to do justice in the situation.
III. CONCLUSION
For the reasons stated, defendant's motion to vacate the judgment entered on June 24, 1999 is denied.
The foregoing constitutes the decision and order of this court.