Opinion
No. 1104/04.
2010-09-21
The PEOPLE of the State of New York, Plaintiff, v. Isidro PAREDES, Defendant.
Joseph Ippolito, Esq., Assistant District Attorney, Office of the Special Narcotics Prosecutor, New York, for the People. Labe M. Richman, Esq., New York, for the Defendant.
Joseph Ippolito, Esq., Assistant District Attorney, Office of the Special Narcotics Prosecutor, New York, for the People. Labe M. Richman, Esq., New York, for the Defendant.
LAURA A. WARD, J.
On January 23, 2004, the defendant was arraigned on a felony complaint charging him with criminal possession of a controlled substance in the third degree, in violation of Penal Law (“P.L.”) § 220.16(12), and criminal possession of a controlled substance in the third degree, in violation of P.L. § 220.16(1). On March 11, 2004, the defendant waived his right to be prosecuted by an indictment and agreed to be prosecuted by a superior court information. The defendant pleaded guilty to criminal possession of a controlled substance in the fourth degree, in violation of P.L. § 220.09. On September 9, 2004, the defendant was sentenced to a period of five years probation. On July 8, 2010, the defendant filed a motion to vacate his conviction pursuant to Criminal Procedure Law § 440.10(1)(h), on the ground that he was denied effective assistance of counsel, thereby violating his constitutional rights. The defendant's motion is based on his claim that defense counsel never informed him of the immigration consequences of pleading guilty.
In 2004, pursuant to People v. Ford, 86 N.Y.2d 397 (1985), the failure of a lawyer to advise a defendant of the immigration consequences of pleading guilty did not deprive the defendant of effective assistance of counsel. Therefore, based on the state of the law in New York State at the time of the defendant's guilty plea, the defendant received effective assistance of counsel. On March 31, 2010, the United States Supreme Court ruled in Padilla v.. Kentucky, U.S., 130 S.Ct. 1473 (2010), that an attorney's representation of a defendant is ineffective when the attorney, counseling a non-citizen defendant on whether to plead guilty to a crime for which deportation is mandatory, fails to advise the defendant that his guilty plea will result in the defendant's deportation. The law is clear that the crime to which the defendant pleaded guilty will result in the defendant's deportation. 8 U.S.C.A. § 1227(2)(B)(i)
Pursuant to his motion, filed more than six years after he pleaded guilty, the defendant alleges that his plea counsel never informed him of the immigration consequences of his plea of guilty to criminal possession of a controlled substance in the fourth degree. In support of his motion, the defendant, in an affidavit, in Spanish, accompanied by a notarized translation, asserts that his plea counsel never told him that pleading guilty “could effect [him] in immigration; he did not explain ... anything about that [he] could lose [his] residence.” Exhibit E to the defendant's motion—the English translation of the defendant's affidavit. The defendant asserts that had he been properly advised he would not have pleaded guilty and would have insisted on going to trial. Additionally, the defendant attaches, as an exhibit, a copy of an e-mail from plea counsel to the defendant's present counsel. The e-mail states that plea counsel has no independent recollection of discussing the immigration consequences of the defendant's plea of guilty. Plea counsel does however state that it was his “practice to advise every non-citizen, through a Spanish-speaking interpreter if needed, that a conviction may result in immigration consequences, including deportation.” The defendant argues that because there is no proof that plea counsel informed the him that his plea of guilty would result in his deportation, his sworn statement provides sufficient evidence to find that he did not receive a warning that his guilty plea would definitely result in his deportation. Therefore, the defendant argues that the Supreme Court's decision in Padilla v. Kentucky, supra, requires that the judgment of conviction be vacated. Resolution of the defendant's motion hinges on whether the New York State Court of Appeals' decision in People v. Ford, supra, that the failure of a lawyer to advise a defendant of the immigration consequences of pleading guilty did not deprive the defendant of effective assistance of counsel, remains applicable to convictions that have been finalized prior to the Supreme Court's decision in Padilla v. Kentucky, supra.
The defendant argues that despite the holding in People v. Ford, supra, in Padilla v. Kentucky, supra, the Supreme Court found that during the time relevant here, defense counsel's failure to advise a defendant that a plea of guilty to a felony involving the possession or sale of controlled substances deprived the defendant of effective assistance of counsel. The People, citing People v. Kabre, Misc.3d, 905 N.Y.S.2d 887 (Crim. Ct. N.Y. Cty.2010), have responded that Padilla v. Kentucky, supra, should not be applied retroactively and that the holding in People v. Ford, supra, is controlling.
For the reasons set forth below, I find that Padilla v. Kentucky, supra, mandates a finding of ineffective counsel and a hearing is required to determine whether the defendant was prejudiced by the failure to be provided with effective counsel.
In determining whether a defendant was denied effective assistance of counsel, a court must apply the standard of effectiveness applicable at the time counsel represented the defendant. Strickland v. Washington, 466 U.S. 668, 690 (1984); People v. Sanchez, AD3d, 904 N.Y.S.2d 24, 29 (1st Dept.2010). The law in New York State at the time of the defendant's guilty plea was governed by People v. Ford, supra, and if still applicable to the defendant's case the defendant's motion should be denied.
However, Padilla v. Kentucky, supra, while not retroactive in the classical sense, does govern guilty pleas entered into at the time of the defendant's plea of guilty.
While the failure to advise a non-citizen defendant of the immigration consequences of a guilty plea did not constitute ineffective assistance of counsel, incorrectly advising a non-citizen defendant of the immigration consequences of a guilty plea did constitute ineffective assistance of counsel. People v. McDonald, 1 NY3d 109, 115 (2003). Here, had defense counsel advised the defendant that pleading guilty “ may result in immigration consequences, including deportation” ( emphasis added ), a finding of ineffective assistance of counsel would be mandated. However, defense counsel has no independent recollection of what he told the defendant and the defendant, in his affidavit, asserts that defense counsel did not give him any advice with regard to the immigration consequences of his guilty plea. Therefore, there is no evidence that the defendant was incorrectly informed of the immigration consequences of his guilty plea.
It is clear that the law in Kentucky at the time of Padilla's guilty plea was similar to the law in New York.
As noted by the Supreme Court,
There was one difference between the law in Kentucky and the law in New York. In Kentucky, providing incorrect information regarding the deportation consequences of guilty pleas was not considered ineffective assistance of counsel. Commonwealth v.Padilla, 253 S.W.3d 482, 485 (2008). In New York, incorrectly advising a defendant of the deportation consequences of a guilty plea fell below the prevailing standard of reasonableness and constituted ineffectiveness of counsel. People v. McDonald, 1NY3d 109, 115 (2003).
[b]efore deciding whether to plead guilty, a defendant is entitled to “the effective assistance of competent counsel.” ... The Supreme Court of Kentucky rejected Padilla's ineffectiveness claim on the ground that the advice he sought about the risk of deportation concerned only collateral matters, i.e., those matters not within the sentencing authority of the state trial court ... In its view, “collateral consequences are outside the scope of representation required by the Sixth Amendment,” and, therefore, the “failure of defense counsel to advise the defendant of possible deportation consequences is not cognizable as a claim for ineffective assistance of counsel.” ... Kentucky high court is far from alone in this view.
Padilla v. Kentucky, supra, at pp. 1480 to 1481 (citations omitted).
Despite the state of the law in Kentucky, the Supreme Court found that, subsequent to the 1996 amendments to the 1952 Immigration and Nationality Act, which mandated deportation of non-citizens who were convicted of certain crimes, “the weight of prevailing professional norms supports the view that counsel must advise her client regarding the risk of deportation.” The Supreme Court also stated that “ ‘[A]uthorities of every stripe-including the American Bar Association, criminal defense and public defender organizations, authoritative treatises, and state and city bar publications-universally require defense attorneys to advise as to the risk of deportation consequences for non-citizen clients ....‘ “ Padilla v. Kentucky, supra, at 1482. The Supreme Court found that, despite the law in Kentucky, the advice given to Padilla by his attorney with respect to deportation fell below “the weight of prevailing professional norms” at the time and therefore, while Padilla's attorney's performance under the law in Kentucky was not deemed ineffective, Padilla was in fact denied effective assistance of counsel.
While People v. Ford, supra, was the law in New York when the defendant pleaded guilty, Ford has been abrogated by Padilla v.. Kentucky, supra, and the standard in New York for judging counsel's performance in the area of immigration at the time of the defendant's guilty plea has, in effect, been replaced by the standard set forth in Padilla v. Kentucky, supra. Therefore, it is as if the law in New York, since 1996, was, and is, that the failure of an attorney to affirmatively and properly advise a non-citizen defendant of immigration consequences of a guilty plea constitutes ineffective assistance of counsel.
Finally, while the Supreme Court has not explicitly stated that Padilla v. Kentucky, supra, is applicable to guilty pleas entered into prior to the issuance of Padilla, it seems to have indicated that those guilty pleas are to be governed by the Padilla standard. In Chapa v. United States, U.S., 130 S.Ct. 3504 (2010), the Court vacated and remanded the Fifth Circuit's decision in United States v. Chapa, 354 Fed.Appx. 203 (5th Cir.2009), “for further consideration in light of Padilla v. Kentucky.” The Fifth Circuit, relying on precedent, Santos–Sanchez v. United States, 548 F.3d 227, 333–336 (5th Cir.2008), rejected the defendant's challenge to her attorney's effectiveness because counsel allegedly misrepresented the deportation consequences of her plea. The Supreme Court's remand of a case involving a guilty plea entered into prior to the decision in Padilla v. Kentucky, supra, is a clear indication that the Supreme Court is of the opinion that Padilla is to be applied to cases involving pleas entered into prior to Padilla and subsequent to the 1996 amendments to to the 1952 Immigration and Nationality Act.
The finding that the defendant was denied effective assistance of counsel does not automatically require that the defendant's motion be granted. A hearing on the issue of whether the ineffective assistance of counsel resulted in any prejudice to the defendant is required. This case is therefore, adjourned for a hearing on the prejudicial effect of plea counsel's failure to provide effectiveness of counsel.
The foregoing is the decision and order of the court.