Opinion
1505N-2011
03-17-2021
The PEOPLE of the State of New York, Plaintiff, v. Jose MOTA, Defendant.
Counsel: Pro Se Defendant Assistant District Attorney Lisa Tompkins
Counsel: Pro Se Defendant
Assistant District Attorney Lisa Tompkins
Miriam R. Best, J.
Defendant has moved for an order vacating the judgment against him pursuant to CPL § 440.10(1)(h), claiming ineffective assistance of counsel. The People oppose the motion. For the reasons that follow, the motion is summarily denied.
This court has reviewed defendant's motion filed May 20, 2020, which includes as exhibits the indictment, the written decision and order of the Hon. Laura A. Ward denying the motion to suppress a number of seized items, including drugs, cellular telephones and drivers’ licenses, and the sentencing minutes; the People's response filed on November 24, 2020; and defendant's reply dated January 7, 2021 (which the court received on January 21, 2021). The court has also reviewed documents in a duplicate court file, including notices of appearance and the record of court action.
The Investigation
In 2011, the Drug Enforcement Task Force ("DETF") and the Office of the Special Narcotics Prosecutor for New York City ("SNP") conducted an investigation of defendant for narcotics trafficking. That investigation included court authorization to intercept communications from a telephone number associated with defendant (Peo's Resp p 3). The DETF learned that between June 22, 2011 and July 3, 2011, defendant communicated with his co-defendants — Deivis Ceballos, Romedi Lara and Cesar Lara — about shipping a large quantity of drugs from Texas to the New York City area (id. pp 3-4; Def Affid ¶ 3). As described by the hearing court,
during the months of June and July in 2011, the [DETF] was intercepting telephone conversations pursuant to wiretaps placed on ... numerous cellular telephones.... Although the conversations were cryptic in nature, based on his experience in narcotics investigations, Special Agent [Todd] Riley [of the Drug Enforcement Administration] interpreted the conversations. Many of the intercepted conversations included conversations between and among the defendants discussing the transfer of large quantities of narcotics.
In addition to intercepting conversations, the narcotics task force had authorization to intercept the locations of the cellular telephones by using GPS tracking software.
In late June 2011, it became apparent to Special Agent Riley that the defendants were preparing to transport a large quantity of narcotics to the New York area. On June 28, 2011, Deivus [sic ] Ceballos was intercepted telling Jose Mota that "the mule was already there, but they were ‘waiting for the jockey.’ " Special Agent Riley testified that based on his training and experience he believed that the statements intercepted meant that a "tractor trailer [loaded with narcotics] was just waiting for the driver."
...
During a call intercepted on July 2, 2011, Ceballos told Matos that the truckload of drugs would be there tomorrow.... Law enforcement was able to ascertain that Ceballos was heading towards New York City from Texas. The members of the narcotics task force headed for Interstate 78 and the border of New Jersey and Pennsylvania hoping to intercept the vehicle carrying the defendants.
(Def Exh D pp 1-2.) The DEFT conducted approximately eight hours of surveillance on July 3, 2011, eventually following defendant and the three co-defendants as they traveled in two separate cars from the Washington Heights area of New York City to the Vince Lombardi rest area of the New Jersey Turnpike (id. pp 2-3; Peo's Resp p 4). Once there, Ceballos and Cesar Lara parked a Toyota Corolla in the truck section in front of a tractor trailer that the DETF had tracked from Texas (Def Exh D p 3; Peo's Resp p 4). While defendant and Romedi Lara watched from a Hyundai Accent, which they parked in the car section of the rest area, Cesar Lara and Ceballos "went into [the] truck and retrieved a suitcase containing approximately 41 pounds of methamphetamine and 11 pounds of heroin that they attempted to place into their car prior to being arrested" (Peo's Resp p 4). In the back seat of the Toyota, DETF members found additional packages of narcotics in a green suitcase that Ceballos had retrieved earlier that day from a store on West 172nd Street in Manhattan (Def Exh D pp 3-4). DETF members then intercepted calls between defendant and Romedi Lara "which indicated that the men believed there was some problem in the truck section where Ceballos and Cesar Lara had gone" (Def Exh D p 3). Romedi Lara and defendant were then also arrested.
DETF members had identified the Hyundai Accent, which had South Carolina license plates, at approximately 3:45 that morning and had followed it to the Washington Heights section of Manhattan, where Cesar Lara and Ceballos later exited and entered two separate locations (Def Exh D p 2). That same morning, before the moving surveillance to New Jersey, DETF members saw Ceballos and defendant meeting at a Burger King between 180th and 181st Streets and St. Nicholas Avenue (id. ), which was charged as Overt Act No. 46 in Count 1 of the indictment (Def Exh A). When he pled guilty, defendant admitted that this meeting was an act in furtherance of the conspiracy (Exhibit 1 [Mins of April 27, 2015] pp 878, 880).
Defendant and Romedi Lara were in the car with Ceballos when they went to the store where Ceballos retrieved the green suitcase (Def Exh D p 2).
Pre-Trial Proceedings
The grand jury of the Special Narcotics Courts of New York City charged defendant, Ceballos, and the Laras with Conspiracy in the Second Degree and Criminal Possession of a Controlled Substance in the First, Second and Third Degrees. It also charged defendant and Ceballos with Operating as a Major Trafficker, a class A-I felony. Criminal Possession of a Controlled Substance in the First Degree is also a class A-I felony, while Criminal Possession of a Controlled Substance in the Second Degree is a class A-II felony. Under PL § 70.71(5), the authorized sentence for Operating as a Major Trafficker shall be an indeterminate term of imprisonment in accordance with PL § 70.00 — that is, between 15 and 25 years to life — unless "the court, having regard to the nature and circumstances of the crime and the history and character of the defendant, is of the opinion that a sentence of imprisonment is necessary but that it would be unduly harsh to impose the indeterminate sentence for a class A-I felony specified in section 70.00 of this article," in which case the court may instead impose a sentence of between eight years and 20 years, PL §§ 70.71(2)(b)(i), (5)(b), (5)(c).
From the time he was arraigned through the time he was sentenced, defendant was represented by several lawyers. Theodore Herlich, Esq., filed a notice of appearance dated September 21, 2011. Paul Brenner, Esq., filed an undated notice of appearance, and documents in the court's file show that he represented defendant on March 30, 2012. Andres M. Aranda, Esq., filed a notice of appearance dated July 30, 2012. Eric Sears, Esq., filed a notice of appearance dated July 21, 2014. Finally, Steven Hoffner, Esq., filed a notice of appearance dated January 9, 2015; he represented defendant at trial, at the plea and at the sentencing.
Mr. Aranda filed an omnibus motion, which was decided by the Honorable Bonnie G. Wittner on October 30, 2012. The court held that the evidence before the grand jury was legally sufficient and the proceedings were proper. The court also ordered a Mapp hearing "only if there was property recovered from defendant's person which the People seek to introduce at trial" (October 30, 2012 Decision and Order [Def Exh D]). The Honorable Laura A. Ward conducted that hearing over the course of three days and then denied suppression in a written decision dated October 1, 2013 (Def Exh D). Defendant thereafter filed a pro se motion to dismiss the indictment "on the ground that the integrity of the grand jury was impaired," which Justice Wittner denied (Letter of February 20, 2014, attached as Exhibit 2).
Defendant was interested in resolving this case before trial, and at some point before Mr. Hoffner was assigned defendant and prior counsel met with the prosecutor to proffer information in an effort to obtain a plea bargain (Exh 1 p 867). The People agreed to make a "no-split" offer to defendant and Ceballos: if both defendants pled guilty to Criminal Possession of a Controlled Substance in the First Degree, the People would agree to a sentence of 10 years in prison. Ceballos was never interested in pleading guilty (id. pp 824-25, 864, 867-69, 874; Peo's Resp pp 10-11).
The Mid-Trial Plea and Sentencing
The trial of defendant and Ceballos began before the Honorable Juan M. Merchan on April 14, 2015 with jury selection. Opening statements were delivered on April 16, 2015, and the People thereafter presented their case, which the trial court described as "pretty overwhelming." The People's evidence included 16 witnesses and 33 wiretapped calls involving defendant (Exh 1 pp 824, 825). After the People announced that they would rest, Ceballos's lawyer advised the court that Ceballos would testify (Exh 1 p 816). After discussing the possibility that Ceballos would identify defendant's voice on intercepted phone calls, which would completely undermine defendant's defense (id. pp 824, 859, 860-61), defendant moved for a mistrial (id. p 858). Although the court thought that it was premature to declare a mistrial before Ceballos actually testified, it did not think the motion was frivolous (id. p 863). After reviewing the evidence and considering aggravating and mitigating factors in the case, the court concluded that it would make special findings on the count of Operating as a Major Trafficker and would offer defendant a determinate sentence on a plea of guilty to that charge (id. pp 864-72). Defense counsel told the court that defendant "would be prepared at this time to take the plea" with a sentence in the range of eight to 12 years, and the People told the court that "there wouldn't be vehement opposition from" them to a sentence of 11 years on a plea to Count 2 (id. p 873).
The number of witnesses who testified is listed in the record of court action contained in the court's duplicate file.
The possibility that Ceballos would inculpate defendant may explain why defendant threatened him in the cells the previous day, prompting Ceballos's lawyer to ask the court to have the two defendants separated for the duration of the trial (Exh 1 p 857).
While seeking to persuade the court to make this offer, Mr. Hoffner stated that defendant "does have a lot of people who love him, who look to him for guidance" (Exh 1 p 872). The court asked if anyone was in the courtroom for defendant at that time. Defense counsel said that defendant's wife was "here from the Dominican Republic," as well as his cousin and "many people" (id. ). The court then asked where defendant's family members lived. Counsel said, "Some of them are here, his daughter in Boston" (id. ). When the court asked whether any of his children lived in Washington Heights, defendant responded, "Mostly in the D.R." (id. at 873). The People also told the court that "Mr. Mota owns properties in the Dominican Republic" (id. at 867).
The court then made defendant its plea offer. On a plea to Count 2, Operating as a Major Trafficker, the court would sentence defendant to 11 years and five year's post-release supervision. On Count 1, the court offered 3-1/2 to 10 years, with the sentences to run concurrently. Defendant must agree to waive his right to appeal and accept the offer "now" (id. pp 873, 875, 884, 888). Before defendant accepted the offer, the court made the following record:
Just to be clear, although the reason for the mistrial has not yet matured in that Mr. Ceballos has not yet taken the stand, based upon what information that has been provided to us there is strong reason to believe that the motion for a mistrial would be granted if the defendant were to take the stand and then testify as we expect him to and given the fact that the defense here is an identification defense, that testimony would probably be unduly prejudicial.
Having said that, Mr. Mota was prepared to avail himself of 10 years before trial. After trial he is looking at a sentence on the top count of 25 to life. So there can be no question that this is a bargain. But if there is any reservation about any of this, please state them [sic ] on the record now.
(Id. p 876.)
Defendant was put under oath before the court began its allocution, and he specifically told the court that he had spoken with his lawyer about pleading guilty and was satisfied with the services of his lawyer (id. p 877). Defendant then pled guilty to Counts 1 and 2, admitting, inter alia , that on or about and between June 22, 2011 and July 3, 2011, in New York County, New York City, New Jersey and elsewhere, he knowingly and intentionally agreed with Ceballos, the Laras and others to engage in and cause the performance of conduct constituting the class A felonies of Criminal Possession of a Controlled Substance in the First and Second Degrees (id. p 878). Defendant admitted that it was a part of the conspiracy for him "to direct the activities of a narcotics trafficking organization operating in the New York City metropolitan area, including New York County, New Jersey and elsewhere." He admitted that it was also part of the conspiracy "for the organization to receive and distribute kilograms of heroin and methamphetamine and to collect, store, transmit, deliver and transport thousands of dollars in narcotics proceeds generated from such distribution" (id. p 879). He also admitted that, in order to achieve the objectives of the conspiracy, he met with Ceballos inside a fast food restaurant in New York City on July 3, 2011, at approximately 9:38 am (id. p 880).
As to Count 2, defendant admitted that "he and the other defendants in Bergen County, County of Ridgefield, New Jersey, on or about July 3, 2011, as profiteers, knowingly and unlawfully possessed on one or more occasions within six months or less a narcotic drug with intent to sell the same and such narcotics drugs were a total aggregate value of $75,000" (id. ).
The court specifically advised defendant that he would be subject to deportation, exclusion from admission to the United States and denial of naturalization as a result of this plea. Defendant told the court that he understood (id. p 885). The court advised defendant that if he were deported as a result of this conviction, he could not "return to this Court and ask to have the conviction set aside because [he] didn't believe that [he] would be deported." Defendant again told the court that he understood (id. ). The court also asked defendant if he understood that "if you are or become subjected to a final order of deportation issued by the United States Immigration and Naturalization Service while in prison you may be paroled to the custody of the Immigration and Naturalization Service for deportation purposes at any time subsequent to the commencement of the indeterminate or in this case the determinate sentence of imprisonment." Defendant said that he understood (id. ). The sentence was adjourned three times, the last time "to give the defendant an opportunity to provide certain documents he believes go to Brady issues" (Def Exh B [Sentencing Minutes of June 3, 2015] p 2). On June 3rd, when the sentence was finally imposed, defendant asked Mr. Hoffner to hand up to the court "a folder with certain documents inside it that deal with the double jeopardy issue" (id. p 3). There was no double jeopardy issue, however, and the documents defendant wanted handed up to the court were forgeries:
In reviewing the plea minutes, this court observed what appear to be two errors in the transcript. When the court asked defendant, "Other than the sentence understanding which has been placed on the record, has anyone made any other commitment, promise or representation of any kind to you to get you to plead guilty?", the transcript says that defendant answered, "Yes" (Exh 1 p 886). When the court then asked, "Has anyone threatened you or forced you or pressured you to plead guilty against your will?", the transcript again says that defendant answered, "Yes" (id .). Significantly, the court did not stop the proceedings to make a further inquiry as to those answers, and neither defense counsel nor the prosecutor asked the court to do so. When the court then asked defendant, "Have I or your lawyer said anything to you to have you plead guilty against your will?", defendant said, "No." Defendant was then asked, "Are you pleading guilty voluntarily of your own free will?", and he answered, "Yes" (id .). Defendant does not claim here that any secret promises were made to him to cause him to plead guilty, nor that he was coerced to so, and he made no such claims when the promised sentence was ultimately imposed (see infra, pp 12-15). This court notes that errors were also made in the transcript of Ceballos's re-trial. In the decision affirming Ceballos's subsequent conviction, the Appellate Division noted that "[t]he totality of the circumstances make it clear that the original transcript [of the taking of the verdict at Ceballos's retrial] misstated the words actually spoken in court," People v. Ceballos , 189 AD3d 414, 414-15 (1st Dept 2020). I conclude that the same thing happened here.
MR. HOFFNER: ... when this case started, it did initially start in New Jersey at which point at — the prosecutor's office decided to dismiss or the Court dismissed it, that being — him being extradited here to New York to deal with it here in New York.
So I actually contacted the clerk of the court in Bergen County and discussed with them certain documents that I had been provided by my client's wife. I believe it was Amarilis (phonetic), right?
THE DEFENDANT: (Nods.)
MR. HOFFNER: I will be honest. When I sent them these documents — I scanned and sent them — and said they have all sorts of stuff on here, they indicated to me they do recall a woman coming to them a few years back and showing them these documents, and that they said these were not documents that they had provided to her and didn't know what they were. I told that to Mr. Mota: I don't know what these documents are. I don't know where they were obtained.
THE COURT: You're referring to documents that he just handed up?
MR. HOFFNER: Yes, the one with Superior Court of New Jersey, records of New Jersey, records of Bergen County.
Truth is, he's been in jail the whole time. I don't know where the documents exactly came from. I don't believe he had anything to do with making them. I know that Bergen County didn't seem to recognize them; but that being said, I know that Mr. Hanley — I showed them to Mr. Hanley and I know he has his own opinion on them.
The truth is, as you know, he's been in jail the whole trial, and obviously, he's handed them up to Your Honor.
Your Honor warned him last week that to the extent that he hands up any documents that are fraudulent in any way, he faces prosecution.
That being said, he's aware of that. He did hand up to you — I don't believe that he was handing Your Honor anything that he believes to be fraudulent.
That being said, I have not been able to verify the authenticity.
THE COURT: But you have verified from someone in Bergen County that these are not their documents?
MR. HOFFNER: They did not recognize them. That's correct.
THE COURT: People?
MR. HANLEY: Your Honor, I'm looking at what's on Defense table, one of the documents, and it's the document that Mr. Hoffner had showed me 2 or 3 months ago, which last week I put on the record I had examined and was clearly in my opinion a forgery.
THE COURT: Can I see the document?
MR. HANLEY: And during my conversation with Mr. Hoffner, we both determined there were misspellings on the document, that actually the clerk's name is not someone who was ever employed by the Bergen County clerk's office, and I know Your Honor put on the record last week that Mr. Mota better not produce these forged documents, and it looks like that's exactly what he has done. It appears to me that he's trying to perpetrate a fraud on the Court and the People.
THE COURT: Can I see that document?
MR. HOFFNER: You have it. I believe that's in the double jeopardy folder.
THE COURT: Tell me which one I'm looking at. It's the cover page?
MR. HOFFNER: Correct. The other documents, I do believe, are all legitimate.
THE COURT: Now, People, you believe that this is a forged document?
MR. HANLEY: One, because none of the witnesses who testified at this trial ever testified in a grand jury proceeding.
There was never any grand jury proceeding in New Jersey. I spoke with the deputy assistant attorney general who handled this case while it was pending in New Jersey, confirmed with her that there was never any grand jury proceeding.
The fact that there is some document that purports to be from the Superior Court of Jersey records division and indicates there was grand jury testimony on July 9th, July 21st, July 23rd of 2011, that's erroneous. There never was any grand jury proceeding.
The name Reilly is spelled incorrectly in number 12. It's spelled incorrectly as R-E-I-L-L-Y, when in fact his name is spelled R-I-L-E-Y.
In addition, the clerk's name is signed and there's no stamp, which is a fairly odd occurrence on a document like this.
It's just — it's representing actions or events that never occurred, and this is specifically the document I made reference to last week in Court.
It's just that I find it very disturbing that, despite that, the defendant still produced this and brought this to Your Honor.
THE COURT: Let's assume for argument's sake that these documents are all authentic. The issue of double jeopardy was already litigated.
MR. HANLEY: That's correct.
THE COURT: Who was it litigated before?
MR. HANLEY: Justice Wittner.
THE COURT: Did Judge Wittner rule?
MR. HANLEY: That jeopardy had never attached in New Jersey.
THE COURT: Why?
MR. HANLEY: There was never a sworn jury. There was never an indictment. It was a preliminary, criminal court complaint pending, which was dismissed after the defendant's indictment in New York and extradition and return to New York on that warrant.
MR. HOFFNER: Additional things occurred more recently. First of all, he did a habeas writ and Judge Mandelbaum denied that, basically saying the same thing, that in his opinion there was no adjudication on the merits.
THE COURT: When did that happen?
MR. HOFFNER: That was just a month or two ago. That being said, I want Your Honor to know that I talked to Mr. Mota about what he's submitted and he is adamant that he received this from another individual. He has no knowledge that it's not authentic.
(Def Exh B pp 4-8.)
Defendant also made it clear that by the time of his sentencing he was unhappy with his plea bargain and wanted to take his plea back, despite having been eager to accept it when it was offered:
[MR. HOFFNER:] That being said, I do see that Your Honor has every reason to move forward with sentencing. I know he's not happy about it. Mr. Mota has, I think, more to say about the issue about wanting his plea back.
Is that right, Mr. Mota?
THE DEFENDANT: They sent me also a statement from Mr. Campos, but that never arrived. It never arrived and was intercepted.
MR. HOFFNER: He's stating that he still would like his plea back.
THE COURT: And he wants his plea back because? The fact that the codefendant had a favorable outcome after trial is not a good reason.
THE DEFENDANT: That's not my reason.
THE COURT: Okay. What is the reason?
THE DEFENDANT: Fine. Fine.
THE COURT: My recollection, sir, is that you were chomping at the bit to plead guilty in this case. In fact, you were trying to get an offer before the case even came to Part 59.
Am I correct, People?
MR. HANLEY: I believe so.
THE COURT: He wanted an offer before. He would have taken an offer before, and an offer indeed was made that he wanted to take, but you were unable to because it was a global offer. I'm just repeating what's already on the record.
At some point during the course of trial, he figured out a way to give you a split offer so that you could avail yourself of the plea even though your codefendant was not, and you were all too happy to accept that offer.
As is my practice, Mr. Mota, I gave a full allocution. I read my allocution to ensure that I don't forget anything.
I asked you if you had been coerced. I asked you if you were apprehensive in any way. I asked you if you understood every ramification of taking that plea, and you said yes, and you seemed quite happy to take that plea offer.
So you're not giving me any reason whatsoever why you want to take the plea back other than that I could speculate was that your codefendant did fairly well at trial; although again, he is probably going to be retried.
Now, as far as these documents, I'm not in a position to rule whether they are counterfeit or not counterfeit, forged or not forged. But my feeling is, assuming for the purposes of this discussion that they are legitimate documents, let's assume that everything in there is legitimate.
I believe — and let me know if you disagree, Counsel — that double jeopardy still did not attach. A jury was not sworn. A jury was not sworn in that case, and we already have one judge in this courthouse that entertained this argument and ruled against you on this argument.
Now, I understand it also went before Judge Mandelbaum, and he, too, refused to entertain that argument.
Sir, you've been through four attorneys, I believe. We are not wasting any more time. We are going to sentence him today.
Ceballos was retried before the Honorable Robert Mandelbaum and found guilty of Conspiracy in the Second Degree and Criminal Possession of a Controlled Substance in the First and Second Degrees. He was sentenced in 2017 to an aggregate term of 13 years’ imprisonment. In December 2020 the First Department affirmed, People v. Ceballos, supra fn. 7.
Ceballos was retried before the Honorable Robert Mandelbaum and found guilty of Conspiracy in the Second Degree and Criminal Possession of a Controlled Substance in the First and Second Degrees. He was sentenced in 2017 to an aggregate term of 13 years’ imprisonment. In December 2020 the First Department affirmed, People v. Ceballos, supra fn. 7.
(Id. pp 8-11.)
When counsel was given the opportunity to address the court, Mr. Hoffner asked the court to impose a lower sentence than the one defendant had agreed to:
MR. HOFFNER: Briefly, Your Honor. I did submit to Your Honor a handful of letters from his family from both his children and the mother of his children.
Basically, they are asking Your Honor to consider a little bit less than the eleven. I realize the eleven was the promised sentence on the date of the plea.
That being said, you could come down as low as eight legally. I continue to agree that eleven is not unreasonable under the circumstances, but at the same time he's 64 years old.
As you can see from the letters, he's got a loving family who'll really need his support. To the extent that he gets even 10 years or 9 years, it still is a very significant amount of time in the life of a 64-year old man at which point of [sic ] he will most likely be deported.
(Id. pp 11-12.) Defendant himself declined to address the court, saying only, "No. Fine, thanks" (id. p 12). The court then imposed the promised sentence, noting that "any inclination that might have existed to deviate from this negotiated plea certainly disappeared once your client started playing games with the Court" (id. ).
The Parties’ Contentions
Defendant's Claims
Defendant claims that, because his lawyer provided ineffective assistance of counsel by "misadvising" him about the deportation consequences of his guilty plea, his guilty plea was not knowing, intelligent and voluntary. He also claims that counsel was ineffective for failing to negotiate a plea bargain that would have allowed defendant to plead to charges for which the same aggregate sentence could have been imposed, but which would not have subjected him to mandatory deportation (Notice of Motion p 1; Def Aff ¶¶ 2, 10-11, 13, 15, 16; Def Reply p 4; Def Reply Exh 1). Yet in his initial motion, defendant does not claim that it was Mr. Hoffner who provided bad immigration advice, or who failed to negotiate a plea that would not result in mandatory deportation. Rather, defendant claims that it was prior counsel who failed to tell him that a plea to Operating as a Major Trafficker would lead to his mandatory deportation:
5. Accordingly, on June 3rd 2015 Mr. Mota after being advised by defense counsel Paul Brenner & Andres Aranda accepted a plea agreement at New York County (Honorable Juan M. Merchan, J.S.C.)....
15. Had Mr. Mota being appraised by defense counsels Paul Brenner & Andres Aranda that there was a possibility for a plea agreement to different count/charge under the obvious circumstances in this case under indictment. One that would have prevented his mandatory deportation — as a Permanent Legal Resident he would have not agreed to plea[d] guilty to charges presented to him. Mota could have pled guilty to a criminal possession of controlled substance without the element of sale.... Which is neither aggravated felony nor trafficking offense under immigration laws with no mandatory deportation consequences. It is clear that defense counsels Paul Brenner & Andres Aranda, never properly examined the indictment in this case.
(Def Aff ¶¶ 5, 15.) Only in his reply brief does defendant suggest that Mr. Hoffner gave him inaccurate information about deportation consequences, pointing to counsel's statement at sentencing that defendant was "a 64-year old man at which point [sic ] he will most likely be deported" (Def Reply p 2) and then arguing that "it is very hard from the content of the record in the Sentencing Minutes that by the use of words as ‘most likely be deported’ that Defendant's attorney was completely convinced that deportation would be guaranteed" (id. p 3).
In his reply brief, defendant does not identify which of his lawyers "could have been more assertive requesting a possible plea agreement that would have prevented his client's deportation" (Def Reply p 4).
Moreover, despite his claim that his lawyers misadvised him of the likelihood of deportation, defendant also states, in a letter attached to his reply brief, that
I Jose Mota ... came before the Court of the State of New York located at 100 Centre St. appearing for my case before the Magistrates represented by:
Dr. Paul Brenner
Dr. Andres Aranda
Dr. Steven Hoffner
Indicating that they as my representatives never informed me that I had a better option in order to obtain a better offer as the one presented by the Prosecutor. They only informed me that I only had the option of accepting 9 years with deportation ....
(Def Reply Exh 1, emphasis supplied.)
Defendant also claims that counsel was ineffective for not challenging the sufficiency of the indictment and that the evidence did not support the charges. He claims that the evidence was legally insufficient to establish that he agreed to possess four or more ounces of cocaine, was never aware of the actual quantity of drugs involved or amount of money to be obtained as profits, and never agreed to sell, possess, distribute or transport drugs to anyone or to any specific location (Def Aff ¶¶ 19, 21, 22). No cocaine was found on his person and there was no evidence that he ever possessed or was seen in possession of "any substance ... much less cocaine" on the date of his arrest (id. ¶ 24). Nor was there any evidence that the vehicles were his property (id. ¶ 25). As for the count of Operating as a Major Trafficker, defendant argues that "[a]s per the indictment ... the telephone conversations under the investigation were for a period of only 20 days, not the 12 months or less required under" PL § 220.77(1) (id. ¶ 30). His workers were not named or identified, and "no proceeds from a sale of a total aggregate value of seventy-five thousand dollars or more were ever recovered as evidence" (id. ¶¶ 30, 32, 33, 34). As for the fact that Mr. Aranda did in fact file a motion to inspect and dismiss the indictment, which Justice Wittner denied, defendant claims that counsel was ineffective "[s]ince he never challenged these counts as charged individually" (Def Reply p 7). Then he points out that "[i]ncidentally it has come to this Defendant's attention that Andres M. Aranda Defendant's former attorney ... has been for a while now suspended from his duties as an attorney" (id. ).
Defendant repeats many of these arguments in his reply brief (see Def Reply pp 5-7).
In 2006 Aranda was suspended for one year for neglecting client matters and failing to file retainer agreements, Matter of Aranda , 32 AD3d 58, 62, 64-65 (1st Dept 2006). He was reinstated on June 26, 2008, In re Aranda , 138 AD3d 142, 150 fn. 1 (1st Dept 2016). In 2015, he was publicly reprimanded by, and suspended from practice before, the United States Court of Appeals for the Second Circuit for a period of 18 months for, inter alia , neglecting multiple criminal appeals, In re Andres M. Aranda , 789 F.3d 48 (2d Cir. 2015). The Appellate Division, First Department thereafter imposed reciprocal discipline suspending him for a period of 18 months, In re Aranda, supra.
The People's Response
The People argue that the motion should be summarily denied, because defendant's claim of ineffective assistance of counsel is supported only by self-serving allegations, and because his claim that his guilty plea was not knowing, intelligent and voluntary is unsupported by the evidence (Peo's Resp p 8). They argue that the only offer the People ever made to defendant was a "no split" offer of 10 years’ imprisonment on a plea to Criminal Possession of a Controlled Substance in the First Degree, which defendant and Ceballos never agreed to take (id. p 10). They note that defendant has not provided affidavits from Mr. Brenner, Mr. Aranda or Mr. Hoffner regarding counsels’ immigration advice, nor explained why he could not obtain them (id. p 11). Moreover, "nowhere in his affirmation does the defendant state that but for plea counsel's alleged deficient performance, he would have insisted upon proceeding to trial" (id. p 12). In any event, the minutes of the guilty plea "belie [defendant's] contention that he did not understand the consequences of pleading guilty due to defense counsel[’]s alleged deficient performance" (id. p 13). In addition, the People's evidence against defendant was strong, and his "conviction at trial for Operating as a Major Trafficker, was very likely" (id. p 16). Thus, "[c]onsidering the nature of the charge that he was facing, the defendant's claim that he would not have pled guilty but for defense counsel's alleged error is both highly unlikely and irrational" (id. ). Also, the court made it clear to defendant when he entered the plea that "he would be subject to deportation and the defendant responded that he understood" (id. ). Mr. Hoffner provided effective assistance by persuading the court to make special findings that allowed the court to offer defendant a definite sentence of less than 15 years on a plea to Count 2, resulting in a far lower sentence than he faced if he were convicted after trial (id. pp 17-18).
As for defendant's claim that counsel did not challenge the sufficiency of the indictment, that is untrue, as Mr. Aranda filed a motion challenging the sufficiency of the grand jury minutes (id. p. 18).
Analysis
Where a defendant seeks to vacate a guilty plea based on a claim of ineffective assistance of counsel,
Whether [the] defendant is entitled to relief on his claim will depend upon whether he can satisfy the prejudice prong of the Strickland v. Washington test, 466 U.S. 668 (1984) ; see Padilla [v. Kentucky ], 559 U.S. [356] at 369 [2010] ; People v. Hernandez , 22 NY3d 972, 975 (2013), cert denied 572 U.S. 1070 (2014). In the context of a guilty plea, [the] defendant must show that there was a reasonable probability that, but for counsel's error, he would not have pleaded guilty and would have insisted on going to trial ( Lafler v. Cooper , 566 U.S. 156, 163 [2012] ; Hill v. Lockhart , 474 U.S. 52, 59 [1985] ; People v. McDonald , 1 NY3d [109] at 113-114 [2003] ).
People v. Lantigua ,184 AD3d 80, 85 (1st Dept 2020) (unofficial citations omitted). The likelihood of conviction at trial is still relevant to the analysis and "must be considered as part of the totality of the evidence regarding the decision to accept a guilty plea," id. at 88 (citing Jae Lee v. United States , 582 US ––––, 137 S Ct 1958, 1966-67 [2017] ). But
the prejudice standard "does not require a defendant to show that going to trial would have been the best objective strategy or even an attractive option" ( United States v. Swaby , 855 F.3d 233, 243-244 [4th Cir. 2017] ). "It merely requires the defendant to show a reasonable likelihood that a person in the defendant's shoes would have chosen to go to trial. The decision does not need to be optimal and does not need to ensure acquittal; it only needs to be rational" ( id. at 244 ).
Lantigua, supra at 88.
Defendant's claims about the immigration advice he received before pleading guilty are inconsistent and contradictory. In his original submission, he claims that his attorney misadvised him that his plea carried "a possibility of deportation when, in fact, it subjected him to mandatory deportation" (Def Aff ¶ 10). In his reply submission, by contrast, he states that three of his lawyers "informed [him] that [he] had the option of accepting 9 years with deportation" (Def Reply Exh 1). Given defendant's attempt to commit a fraud on the court after entering his plea, this inconsistency certainly undermines his present claims. Moreover, defendant has not submitted an affidavit from any of his attorneys detailing what advice they gave him about the negative immigration consequences of any of the plea offers that were made to him. Contrary to the People's claim (Peo's Resp p 10), however, there is some support in the record for defendant's claim that Mr. Hoffner misadvised him, because of counsel's statement to the court that defendant would most likely be deported after serving his sentence.
A defendant whose guilty plea will result in mandatory deportation, but whose lawyer advised that the defendant would "most likely" be deported as a result of the plea, has received ineffective assistance of counsel. People v. Johnson , 177 AD3d 484, 485 (1st Dept 2019) ; see also People v. Rodriguez , 165 AD3d 546 (1st Dept 2018) (record showed that defendant was deprived of effective assistance of counsel when plea counsel failed to advise him that plea to criminal possession of a controlled substance in the first degree, an aggravated felony, would result in mandatory deportation, and merely advised him that deportation was a possibility). But even assuming arguendo that Mr. Hoffner failed to advise defendant that accepting the court's offer would result in mandatory deportation, defendant does not claim, and cannot establish, that there is a reasonable probability that but for that error he would have rejected the court's offer and insisted on completing the trial.
Defendant pled guilty here with full knowledge of the strength of the People's case against him. Unlike the typical case in which a defendant pleads guilty before any hearings are held or before the People begin presenting evidence to the jury, defendant pled guilty only after the People rested their direct case. At that point, he had seen and heard all of the evidence against him, including 16 witnesses and 33 wiretapped calls, and was facing the prospect that, if convicted on the most serious count, he would go to prison for a minimum of 15 to 25 years to a maximum of the rest of his life. The court characterized the People's case at trial as "pretty overwhelming" (Exh 1 p 824) and defense counsel conceded that the only defense he could think of was to argue that there was a reasonable doubt as to whether it was defendant's voice on the wiretapped phone calls (id. p 860).
The record also plainly demonstrates that defendant was eager to take a plea to avoid a very long prison term, and in that respect, Mr. Hoffner provided very effective assistance of counsel. He persuaded the court to make findings that would allow the court to impose a determinate sentence substantially below the statutory minimum of 15 years to life that defendant was facing if the jury convicted him on Count 2. Defendant was "chomping at the bit to plead guilty" before the trial began, and was "all too happy" to accept the offer that the court made to him at the end of the People's case (Def Exh B pp 9-10). Moreover, absolutely nothing in the record before this court suggests that defendant's paramount concern was to try to remain in the United States rather than to try to avoid a life sentence. Indeed, defendant does not actually claim here that if his lawyer had correctly advised him that he would be deported if he accepted the court's offer, he would have been willing to risk a life sentence for a shot, however long, at a jury verdict acquitting him of every aggravated felony in the indictment. Instead, all he claims is that he was a legal permanent resident with no prior criminal record, who lived in the United States for over 30 years and had strong family ties here. But on the day he pled guilty, he also had ties to the Dominican Republic: his wife was in the courtroom "from the Dominican Republic," his children were "[m]ostly in the D.R.," and he owned "properties in the Dominican Republic" (Exh 1 pp 867, 872, 873).
Although Justice Merchan said that defendant had "no criminal history to speak of" (Exh 1 p 872), defendant's claim that he was "without a criminal record" (Def Reply p 4) is not literally true. According to the Fingerprint Response Summary dated September 20, 2011 that is in the court's file, defendant had a1981 Bronx County conviction for the class A misdemeanor of Unauthorized Use of a Vehicle.
--------
Defendant claims further that he would have "obviously prefer[red] to elect and take a different plea to a charge that would have given him an opportunity [of] remaining in the United States" (Def Aff ¶¶ 11, 15; Def Reply pp 3-4, emphasis supplied). But the issue on this branch of defendant's motion is not whether he would have preferred a different plea offer, it is whether there is a reasonable probability that he would have elected to finish the trial if his lawyer had given him accurate immigration advice. Defendant has not demonstrated any such probability, and nothing in his motion establishes that remaining in the United States was of such paramount importance to him that he would have chosen to continue the trial rather than accept the court's plea offer. Contrast People v. Martinez , 180 AD3d 190, 194 (1st Dept) (record at CPL § 440 hearing established that defendant would have given paramount importance to avoiding deportation, had he known that it was more than a mere possibility, given his long history in the United States, his efforts to become a citizen, his family circumstances, and his gainful employment in Massachusetts), lv denied , 35 NY3d 972 (2020).
Accordingly, no hearing is necessary to deny this branch of defendant's motion. People v. Delorbe , 35 NY3d 112, 117, 121 (2020) (Supreme Court did not abuse its discretion in summarily denying defendant's CPL § 440.10 motion, where defendant's claim that "had he been informed of the immigration consequences of his plea, he would have asked his attorney to negotiate a plea with less severe immigration consequences was ‘conclusory’ and ‘unsupported by any factual allegations regarding the significance that potential deportation holds for him or his incentive to remain in the United States,’ as required by the Criminal Procedure Law"); see also People v. Garcia , 154 AD3d 626, 627 (1st Dept 2017) (defendant's bare-bones claim that he would have gone to trial or sought more favorable plea had he known deportation was mandatory was made solely by him and unsupported by other evidence; court properly determined, without a hearing and based on totality of circumstances, that there was no reasonable possibility that defendant's claims were true), lv denied , 90 NY3d 1105 (2018); People v. Clemente , 58 Misc 3d 266, 270, 272 (Sup Ct, Bronx County 2017) (summarily denying defendant's CPL § 440.10 motion; "[n]ot once in his affidavit does the defendant state that at the time of the instant plea, the immigration consequences were a significant factor in his decision whether to plead guilty, or that had he known he would be deported he would have rejected the plea deal").
A defendant who claims that counsel was ineffective for failing to negotiate a plea bargain with less severe immigration consequences
has to show that there is a reasonable probability that the People would have made such an offer ( People v. Young , 150 AD3d 429, 51 [1st Dept. 2017], lv denied 29 NY3d 1136 [2017] ). If the likelihood that the People would have made such an offer is speculative, then the motion may be denied without a hearing ( People v. Olivero , 130 AD3d 479 [1st Dept. 2015], lv denied 26 NY3d 1042 [2015] ).
People v. George , 183 AD3d 436, 437 (1st Dept 2020) (unofficial citations omitted) (where People agreed to a sentence of one year in prison and one year of post-release supervision to cover defendant's drug offenses, record suggested that they would have agreed to a different, immigration-favorable disposition resulting in same aggregate prison time); contrast People v. Young , 150 AD3d at 429 ("the submissions on the [ CPL § 440.10 ] motion fail to establish any reasonable probability that the People would have made" a more immigration-favorable plea offer); People v. Manuel , 143 AD3d 473, 474 (1st Dept 2016) ("Defendant's claim that a more immigration-favorable plea might have been available is purely speculative [see People v. Olivero ...]."), lv denied , 28 NY3d 1147 (2017).
The record before this court makes clear that the People were never prepared to offer defendant a plea that would have had discretionary, rather than mandatory, deportation consequences. Before trial, the People's offer was 10 years in prison if and only if both defendant and Ceballos pled guilty to Criminal Possession of a Controlled Substance in the First Degree, an aggravated felony that would result in mandatory deportation, People v. Rodriguez, supra at 546. After the case was in a "very serious trial posture," defense counsel attempted to secure a plea offer of eight years, but the assigned assistant district attorney "told him very clearly that would never happen" (Exh 1 p 869). Given this history, it is simply inconceivable that Mr. Hoffner could have persuaded the People, after they had rested their direct case, to make an offer that did not require defendant to plead guilty to the top charge in the indictment. Because defendant has not shown that there is a reasonable probability that the People would have made him an offer that did not result in his mandatory deportation, no hearing is required to deny this branch of his motion.
As for defendant's claim that counsel was ineffective for not challenging the sufficiency of the evidence before the grand jury, it fails for two reasons. First, it is contradicted by the record. Defense counsel filed a motion to dismiss the indictment, which was denied. CPL § 440.30(4)(c). Moreover, as the Court of Appeals has repeatedly observed,
A plea of guilty ... generally marks the end of a criminal case, not a gateway to further litigation [citations omitted]. As a rule, a defendant who in open court admits guilt of an offense charged may not later seek review of claims relating to the deprivation of rights that took place before the plea was entered [citations omitted]. This is so because a defendant's "conviction rests directly on the sufficiency of his plea, not on the legal or constitutional sufficiency of any proceedings which might have led to his conviction after trial" [citations omitted]. A guilty plea will thus encompass a waiver of specific rights attached to trial, such as the right to a trial by jury and to confrontation, and it will also effect a forfeiture of the right to revive certain claims made prior to the plea.
People v. Hansen , 95 NY2d 227, 230 (2000). Accordingly, by pleading guilty and admitting his guilt under oath, defendant has forfeited any challenge to the sufficiency of the evidence supporting the indictment.
Conclusion
For all of these reasons, defendant's motion is summarily denied in all respects.
The foregoing constitutes the decision and order of this court.