Opinion
2007KN010757.
Decided on June 14, 2010.
For the People, Charles J. Hynes, District Attorney, Kings County, by Bruce Alderman, Esq., Assistant District Attorney.
The Defendant appears pro se.
By motion dated December 21, 2009, Defendant seeks to vacate his conviction in the above-captioned matter pursuant to CPL Sec. 440.10(1)(h). This court has reviewed Defendant's motion, as well as the Affirmation in Response submitted by the People dated April 27, 2010.
For the reasons stated below, Defendant's motion is denied in its entirety.
On February 8, 2007, under Docket Number 2007KN010757, Defendant was charged with one count of Criminal Possession of a Controlled Substance in the Seventh Degree (PL Sec. 220.03), a Class A misdemeanor. On February 9, 2007, Defendant entered a plea of guilty to the sole count of the Criminal Court Complaint, and received a sentence of Time Served (Hon. G. Pickett, JCC). Judgment was entered for the $160.00 surcharge.
To date, Defendant has not appealed his conviction in this matter.
By motion dated July 30, 2009, Defendant previously sought to vacate his conviction in this matter. At that time, Defendant asserted that when he entered his guilty plea, he was not informed of the collateral consequences of his conviction, namely, that this conviction would subject him to deportation from this country, and that as a result, his plea was not voluntary.
By decision dated September 30, 2009, this court denied Defendant's previous motion to vacate his conviction. In particular, the Court noted that "Defendant has not indicated that his counsel gave him the wrong advise. Instead, he states (that) he was never told that his guilty pleas would cause a violation of his immigration status . . . (nor) does Defendant indicate that he even asked . . . his attorneys about the effect his plea of guilty would have on his immigration status prior to the entry of his guilty pleas." See, decision of September 30, 2009, page 3.
It should be noted that Defendant previously sought to vacate his convictions in two dockets; Dkt #
2007KN010757, the subject of the current motion, and Dkt. #
2007KN022681, which is not challenged here. Since the court previously ruled on both motions to vacate these convictions in one decision, quotes from that decision may reference plural pleas and attorneys.
Now Defendant asserts that prior to the entry of his guilty plea in this docket, he was told by his counsel "plead guilty and you would walk out right now." Further, Defendant states that he asked "his counsel if his plead (sic) would have any effect on immigration," and was told by his counsel that "it (the plea) would not have any effect because it would be only a misdemeanor." Thus, Defendant now asserts that he did not receive the effective assistance of counsel in that his attorney misinformed him of the immigration consequences of his guilty plea.
The court is in possession of an Affirmation dated May 19, 2010 from the attorney who represented Defendant at his plea and sentence. There, counsel states that she advised the Defendant "that he had previously plead guilty to the same charge on a prior occasion and had several misdemeanor convictions . . . (and) . . . that any plea, including a guilty plea to the charge he faced in this case, could potentially result in deportation or exclusion." Further, counsel denies that she told Defendant "(p)lead guilty and you would walk out right now," or that a misdemeanor would not affect his immigration status.
Before addressing the merits of Defendant's current motion, this Court again finds that a formal hearing in this matter is unnecessary. This Court is in possession of the transcript of Defendant's plea and sentence in Docket 2007KN010757, and has previously ruled in this matter. As such, this Court may be "presumed to be fully familiar with all aspects of the case.'" See, People v. Demetsenare , 14 AD3d 792 , 793 (3d Dept., 2005) citing People v. Loomis, 256 AD2d 808, 808-809 (3d Dept., 1998), lv. den. 93 NY2d 854 (1999). This Court has once more reviewed the record of the underlying proceedings. Therefore, no formal hearing is necessary. See, also, People v. Robetoy , 48 AD3d 881 , 883, 851 NYS2d 297 (3d Dept., 2008).
As noted in this court's decision of September 30, 2009, a review of the sufficiency of a Defendant's allegations of insufficient representation of counsel rests within the discretion of the judge to whom the motion is made. See, People v. Tinsley, 35 NY2d 926, 927, 365 NYS2d 926 (1974). To resolve a claim of ineffective assistance of counsel, the court must engage in a two-prong analysis. The court must determine whether counsel's performance was deficient, and whether a defendant suffered actual prejudice as a result of counsel's deficiency. People v. McDonald, 296 AD2d 13, 17, 745 NYS2d 276 (3d Dept, 2002), aff., 1 NY3d 109, 769 NYS2d 781 (2003); Strickland v. Washington, 466 US 668, 104 S. Ct. 2052 (1984); People v. Baldi, 54 NY2d 137, 444 NYS2d 893 (1981).
Defendant again fails to pass the first prong of the Strickland test, in that, there is no credible evidence that Defendant's counsel was ineffective.
The Court is inclined to find persuasive the Affirmation of counsel dated May 19, 2010, in which counsel provides detailed statements of fact, as opposed to the self-serving allegations made by the Defendant in his motion dated December 21, 2009. In particular, it cannot escape the notice of this court that as stated by the People in their Affirmation in Opposition dated April 27, 2010, "(d)efendant has submitted inherently contradictory allegations in support of his separate motions to vacate. In his previous motion, defendant alleged that his attorney failed to inform him about immigration consequences . . . in contrast, defendant (now) alleges that counsel misinformed him about the immigration consequences of his guilty plea." (Emphasis added.)
In light of these facts, it is clear that counsel was in no way ineffective. The Defendant gained the benefit of a negotiated plea bargain, in which he plead guilty to a reduced charge, and received a sentence which avoided a possible term of incarceration. See, People v. Bankowski, 134 AD2d 768, 521 NYS2d 809 (3d Dept, 1987). "The mere fact that defendant is unhappy with the results of his trial is not a sufficient basis to establish such a lack of meaningful representation." People v. Malve, NYLJ, 9/20/02, p. 22, col. 2.
Recently, in Padilla v. Kentucky, 559 US —, 130 S Ct 1473 (2010), the United States Supreme Court ruled that the failure of a criminal defense attorney to properly advise a defendant of the immigration consequences of a guilty plea was a violation of the defendant's Sixth Amendment right to counsel. Though Defendant does not raise this line of argument, and the People assert that the Padilla decision cannot be applied retroactively, given that this is the second time Defendant has sought vacature of his plea, the Court will address this issue at this time.
In Padilla, a lawful permanent resident of the United States was informed by his counsel that "he did not have to worry about his immigration status" if he plead guilty to transporting a large quantity of marijuana "since he had been in the country" for approximately 40 years. See, 130 S. Ct. at 1477-1478. This advise was incorrect, and defendant was subjected to removal proceedings. 130 S. Ct. at 1477.
In pertinent part, the Supreme Court agreed that counsel's representation fell below an objective standard of reasonableness, citing the first prong of the Strickland test. 130 S. Ct. at 1483. However, the Supreme Court remanded Padilla for a review of whether or not his counsel's failure to notify him of the immigration consequences of his plea prejudiced him, the second prong of Strickland. 130 S. Ct. at 1483-1484.
There is recent authority for the proposition that Padilla may be applied retroactively, since the Padilla decision "did not announce a new constitutional rule, but merely applied the well-settled rule of Strickland to a particular set of facts." See, People v. Bennett, — Misc 3d-, 2010 WL 2089266 (Crim Ct, Bx Cty 2010). Regardless, since Defendant's counsel in the instant matter did not provide inadequate representation to the Defendant, the Supreme Court's holding in Padilla is inapplicable to the instant matter.
Even if, for the sake of argument, we were to accept Defendant's new allegations, and find that his attorney had given him incorrect or incomplete advice, Defendant would still not meet the second prong of Strickland. As noted in this Court's decision of September 30, 2009, defendant was initially offered a plea to a Class B misdemeanor with 15 days jail. He opted instead to accept a plea to the charge with time served. Defendant was fully allocuted on the voluntarily nature of his plea, and was granted the agreed-upon sentence.
Thus, "defendant was not prejudiced' by his attorney's alleged shortcomings. Rather, defendant was solely motivated to plead guilty in order to avoid — at all cost — a . . . prison term." See, People v. Robles-Mejia, 27 Misc 3d 1219(a), 2010 WL 1855762 (S Ct Bx Cty 2010).
It is worth noting that in the instant case, defendant was asked during his plea allocution if he was being forced to plead guilty, and if he was promised "anything other than time served" in an effort to convince him to enter his plea of guilty. The record shows defendant answered "no" to these inquiries. February 9, 2007 Plea and Sentence Transcript, p 3. The Robles-Mejia Court noted similar language in its plea allocution of that defendant. Id. at 1219(a).
In State v. Quiroga, 2007 WL 1774197 (App. Div., NJ 2007), in denying defendant's appeal, the New Jersey Appellate Division noted that "at the time of the plea (the court) asked defendant: Other than what's been placed on the record, has anybody made any additional promises to you as to what would happen at the sentence if you pleaded guilty other than what we've laid out here on the record?' Defendant answered, No.'" Id. at p. 1.
In its September 30, 2009 opinion, the Court also reviewed defendant's extensive experience with the criminal justice system. "Succinctly stated, defendant was willing to pay any price — regardless of the immigration consequences — to draw the proverbial and most desirable get-out-of-jail-card.' Having thus drawn that card, defendant's current self-serving statements to the contrary . . . are palpably insufficient to establish prejudice as defined by Strickland." Robles-Mejia, 27 Misc 3d at 1219(a).
Therefore, for the reasons stated herein, as well as those stated in this Court's September 30, 2009 decision, Defendant's motion must again be denied.
All other arguments advanced by Defendant have been reviewed and rejected by this court as having been previously considered, and being without merit.
This shall constitute the opinion, decision, and order of the Court.