Opinion
No. 2008NY012378.
2010-09-28
The PEOPLE of the State of New York v. Franday T. ORTEGA, Defendant.
Stephen J. Singer, Esq., Sparrow, Singer & Schreiber, Kew Gardens, NY, for Defendant. ADA Erin Tierney, Esq., New York County District Attorney's Office, New York, NY, for People.
Stephen J. Singer, Esq., Sparrow, Singer & Schreiber, Kew Gardens, NY, for Defendant. ADA Erin Tierney, Esq., New York County District Attorney's Office, New York, NY, for People.
ANTHONY J. FERRARA, J.
The Supreme Court recently held that “advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel.” (Padilla v. Kentuckty, 130 S.Ct. 1473, 1482 [2010];cf People v. Ford, 86 N.Y.2d 397 [1995] ). On June 18, 2010, the Defendant moved, pursuant to Criminal Procedure Law x 440.10[1][h] and in the interest of justice, to vacate his three convictions by guilty plea on docket Numbers 2002NY088796, 2008NY005978, and 2008NY012378.
The Defendant affirms that he is currently in an Immigration Detention facility, awaiting his deportation proceedings because of these convictions. He alleges that at the time of his guilty pleas he was not aware that he would be subject to possible deportation and that “neither the Court nor my attorney asked me of my immigration status and neither the Court nor my attorney advised me that by accepting and entering this plea that I could be subjected to deportation proceedings.” (Def. Affidavit paragraph 4). The defendant argues that these three convictions should be vacated because they were not knowing, intelligent and voluntary and because he was deprived of his Sixth Amendment right to effective assistance of counsel. The People served and filed their response on September 14, 2010. Based on the submissions of the parties, and for the reasons below, Defendant's motion with respect to docket 2002NY088796 is denied and a hearing is ordered with respect to dockets 2008NY005978 and 2008NY012378. The Right to Effective Assistance of Counsel
Court records also show that on November 15, 2005, the Defendant was arraigned on another marijuana charge (docket number 2005NY077224) and that while that case was pending, on April 8, 2006, the defendant was arraigned on yet another marijuana charge (docket number 2006NY023858). On May 31, 2006, the defendant plead guilty to Penal Law § 221.10, criminal possession of marijuana, on the first of these two cases (2005NY077224), was sentenced to time served, and the second case (2006NY023858) was dismissed. The Defendant has not moved to vacate this conviction.
The right to effective assistance of counsel is guaranteed by the Federal and State Constitutions (United States Constitution, 6th Amendment; New York Constitution, Article I, § 6). Counsel must be appointed for any indigent defendant charged with a serious crime ( see Gideon v. Wainwright, 372 U.S. 335 [1963] ). Under the Federal Constitution, a guilty plea will be upheld as valid when it represents a voluntary and intelligent choice among alternative courses of action open to a defendant (Hill v. Lockhart, 474 U.S. 52, 56 [1985] ). A defendant who seeks to challenge the voluntary and intelligent character of a guilty plea on the ground of ineffective assistance of counsel must establish 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 ( see Strickland v. Washington, 466 U.S. 668 [1984];Hill, 474 U.S. at 58–59). As a matter of New York State constitutional law, a defendant must receive “meaningful representation” ( see People v. Henry, 95 N.Y.2d 563, 565 [2000];People v. Benevento, 91 N.Y.2d 708, 713 [1998];People v. Baldi, 54 N.Y.2d 137, 147 [1981]aff'd, 96 A.D.2d 212 [1983]lv. denied,61 N.Y.2d 761 [1984] ). Ineffective Assistance of Counsel under the Federal Standard
Recently, the United States Supreme Court held that the Sixth Amendment mandates that criminal defense attorneys give correct advice to their noncitizen clients concerning the risk of adverse immigration consequences, particularly deportation, as a consequence of a conviction (Kentucky v. Padilla, 130 S.Ct. 1473, 1483 [2010] ). The Defendant argues that Padilla applies to his guilty pleas.
The first issue presented by Defendant's Criminal Procedure Law x 440 motion is whether the rule of law announced by the United States Supreme Court in Padilla applies to these collateral challenges to his guilty pleas. Initially, the Court must determine whether the rule announced in Padilla is a new rule of law. While an old rule applies both on direct and collateral review, a new rule is generally applicable only to cases still on direct review (Griffith v. Kentucky, 479 U.S. 314 [1987] ). Because this Court finds that Padilla merely applied the old rule described in Strickland to a specific set of facts, Defendant's Padilla claim applies on collateral review pursuant to Criminal Procedure Law x 440.
It is true that controlling precedent in New York and many other jurisdictions previously labeled immigration consequences as collateral matters to a criminal conviction and therefore lack of advice regarding these was not generally cognizable under a claim of ineffective assistance of counsel ( see People v. Ford, 86 N.Y.2d 397 [1995];Kentucky v. Padilla, 130 S.Ct. 1473, 1481 [2010],collected cases footnote 9). However, the existence of conflicting authority does not resolve whether the Supreme Court announced a new rule ( see Wright v. West, 505 U.S. 277 [1992] ). In Wright v. West the Supreme Court stated that “[i]f the rule in question is one which of necessity requires a case-by-case examination of the evidence, then we can tolerate a number of specific applications without saying that those applications themselves create a new rule.” (West, 505 U.S. at 308–09). Furthermore, when the Supreme Court applies an established rule of law in new way based on the specific facts of a case, it generally does not create a new rule ( see Stringer v. Black, 503 U.S. 222 [1992] ). This Court finds that the Supreme Court merely applied Strickland's well-established test to determine whether Padilla's counsel's performance was objectively reasonable and therefore did not announce a new rule of law ( see Teague v. Lane, 489 U.S. 288 [1989];Butler v. McKellar, 494 U.S. 407 [1990];People v. Eastman, 85 N.Y.2d 265 [1995] ).
This Court recognizes that there is disagreement among trial courts as to whether Padilla announced a new rule ( see People v. Kabre, 905 N.Y.S.2d 887, 2010 N.Y. Slip Op 20291 [Crim. Ct. New York County, 2010] [finding Padilla did announce a new rule but that it does not apply retroactively on collateral review]; cf. People v. Bennett, 28 Misc.3d 575, 903 N.Y.S.2d 696, 2010 N.Y. Slip Op 20194 [Crim Ct, Bronx County 2010] [finding Padilla did not announce a new rule]; United States v. Hubenig, 2010 U.S. Dist. LEXIS 80179, 2010 WL 2650625 [E.D. Cal.2010] ).
In Padilla the Supreme Court reiterated their rejection of the distinction between collateral and direct consequences to define the scope of effective assistance of counsel and pointed out that for at least 15 years prevailing professional norms have required that defense counsel advise their clients regarding deportation and discuss other possible immigration consequences ( see Padilla, 130 S.Ct. at 1482–1483). The Supreme Court clearly understood its holding in Padilla would apply retroactively when it stated that it had “given serious consideration” to the argument that its ruling would open the “floodgates” to new litigation challenging prior guilty pleas. Id. at 1484–85. The Supreme Court minimized the “floodgates” concern by recognizing that guilty pleas are advantageous bargains and that, under the second prong of Strickland, a petitioner would must “convince the court that a decision to reject the plea bargian would have been rational under the circumstances.” ( see Padilla, 130 S.Ct. a 1485, quoting Roe v. Flores–Ortega, 528 U.S. 470 [2000] ). Although Padilla overruled some precedent, and the Supreme Court's statement that it “now hold[s] that counsel must inform her client whether his plea carries a risk of deportation,” Padilla, 130 S.Ct. at 1486, may be interpreted to indicate that the Court intended to create a new rule, the legal analysis throughout Padilla employed the long established standard set forth in Strickland and not a new rule of law.In Padilla, the Supreme Court held that an attorney must advise his or her client regarding the risk of deportation (Padilla, 130 S.Ct. at 1482–3). “[I]t is quintessentially the duty of counsel to provide [his or] her client with available advice about an issue like deportation and the failure to do so clearly establishes the first prong of the Strickland analysis” ( Padilla 130 S.Ct. At 1484). Furthermore, the Supreme Court recognized the complexity of immigration law and stated that where the immigration consequences were uncertain counsel's duty is more limited and “a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.” (Padilla, 130 S.Ct. at 1483). Previously, the Supreme Court has assumed that competent defense counsel would be aware and advise non-citizens concerning the immigration consequences of criminal convictions and the possibility of discretionary relief from deportation ( see INS v. St. Cyr, 533 U.S. 289, 322–23 [2001] [holding that new legislation abrogating possible discretionary relief from deportation could not, as a matter of fundamental fairness, be applied retroactively] ). Assuming the truth of Defendant's allegations, his claims of ineffective assistance of counsel with respect to docket numbers 2008NY5978 and 2008NY012378 meet the first prong of the Strickland test ( see Padilla at 1478). However, the Court cannot determine whether Defendant's allegations satisfy the second prong of Strickland (Id.), prejudice to the defendant, without a hearing.
With respect to docket 2002NY088796, Defendant's motion is denied because he cannot establish that his attorney's advice, whatever it was, was unreasonable. On Docket 2002NY088796 the Defendant plead guilty to unlawful possession of marijuana, a violation, and this disposition compelled that the records be sealed pursuant to Criminal Procedure Law x 160.50[3][k]. Sealing pursuant to Criminal Procedure Law x 160.50 is defined as a “termination of a criminal action in favor of the accused” and is equivalent to a dismissal or a verdict of complete acquittal. Criminal Procedure Law x 160.60 requires that, after sealing pursuant to Criminal Procedure Law x 160.50, “the arrest and prosecution shall be deemed a nullity and the accused shall be restored, in contemplation of law, to the status he occupied before the arrest and prosecution.” (CPL x 160.60). This disposition resulted in the same sealing were the charges dismissed or if the Defendant had been found not guilty after a trial. Furthermore, under Federal Law, deportation may not be based solely on a conviction for unlawful possession of 30 grams or less of marijuana: “any alien who at any time after admission has been convicted of a violation or regulation of a State, the United States or a foreign county relating to a controlled substance ..., other than a single offense involving possession for one's own use of 30 grams or less of marijuana (emphasis added), is deportable.” (8 U.S.C. § 1227[a][2][B[i] ). Thus, in 2002, when Defendant plead guilty to this charge there were no immigration consequence to his guilty plea. Under New York Law this disposition resulted in a termination in favor of the Defendant, and, under applicable Federal Law, the Defendant was not rendered deportable. Even if his attorney did not give any advice regarding adverse immigration consequences, this was objectively reasonable. Defense counsel obtained a beneficial non-jail disposition and, at the time of Defendant's plea, because this was Defendant's first conviction of a marijuana violation, there were no adverse immigration consequences to Defendant. Defendant's motion to vacate his conviction and withdraw his guilty plea due to ineffective assistance of counsel under Strickland with respect to docket 2002NY088796 is denied. Defendant's request for a hearing on this matter is also denied.
With respect to dockets 2008NY005978 and 2008NY012378, Defendant asserts that, but for counsel's lack of advice concerning the possible negative immigration consequences, he would have gone to trial. To succeed on an ineffective assistance of counsel claim a defendant must satisfy the second prong of the Strickland test by “affirmatively prov[ing] prejudice.” ( see Strickland, 466 U.S. at 693). In order to demonstrate prejudice with respect to a guilty plea, a petitioner must show that there is “a reasonable probability that, but for counsel's errors, [Petitioner] would not have pleaded guilty and would have insisted on going to trial.” ( see Hill v. Lockhart, 474 U.S. 52, 59 [1985] ). Whether the Defendant can establish a reasonable probability that he would not have pleaded guilty on dockets 2008NY005978 and 2008NY012378 had he been informed of the adverse immigration consequences is best determined after a hearing ( see People v. Williams, 72 A.D.3d 1347, 899 N.Y.S.2d 438 [3rd Dept.2010] [reversing trial court's denial, without a hearing, of defendant's CPL x 440 motion to vacate his guilty plea based upon ineffective assistance of counsel due to lack of advice regarding immigration consequences] ). Defendant's motion to vacate his conviction and withdraw his guilty plea due to ineffective assistance of counsel under Strickland with respect to dockets 2008NY005978 and 2008NY012378 is granted to the extent that a hearing is ordered.
Dockets 2008NY005978 and 2008NY012378 are currently calendered in Part SA on October 7, 2010. Upon filing of this decision those cases will be administratively calendered in Jury Part 4, located in Room 450B on the 4th floor of 100 Centre Street. A copy of this decision has been mailed to the parties and the parties are encouraged to agree on a hearing date prior to their appearance before the court on October 7, 2010, in Jury Part 4.