Opinion
No. 5367/84.
04-07-2015
The PEOPLE of the State of New York v. Angel CAMACHO, Defendant.
Milton H. Florez, Esq., Elmhurst, for Defendant Angel Camacho. ADA Arieh Schulman, for The Office of Kenneth P. Thompson, District Attorney for Kings County.
Milton H. Florez, Esq., Elmhurst, for Defendant Angel Camacho.
ADA Arieh Schulman, for The Office of Kenneth P. Thompson, District Attorney for Kings County.
Opinion
JOEL M. GOLDBERG, J.
The defendant's motion, dated December 1, 2104, pursuant to CPL 440.10 to vacate the judgment upon consideration of the People's Answer, dated March 27, 2015, is denied.
The defendant has not alleged sufficient facts to warrant a hearing on his claims that the March 21, 1986 judgment convicting him following his guilty plea on February 3, 1986 to Criminal Possession of a Controlled Substance in the Fourth Degree, a Class C felony, and sentencing him to a jail term of 6 months and five years probation (Fisher, J. at plea and sentence) was obtained in violation of the defendant's federal and state constitutional rights as a result of either ineffective assistance of counsel or a failure by the Court that would be reviewable on this motion to advise the defendant of the possibility that this conviction would subject the defendant to deportation.
Background
The defendant, now age 54, claims that he is currently facing deportation proceedings in federal court as a result of this 1986 conviction (Defendant's Affidavit, par. 13). The defendant states on this motion that he illegally entered the United States sometime in 1982 from his native country of Columbia. The defendant, according to People's Exhibit A submitted in answer to this motion, was notified by the Department of Homeland Security (DHS) in a Notice to Appear, dated May 14, 2012, that he is subject to removal because of his unauthorized entry into the United States without any reference to this conviction as a basis for the removal proceeding.
Even if this conviction is now serving as a basis to deport the defendant, which the People contend it is not, the defendant's unauthorized entry into the United States appears to be an independent basis for his deportation.
Following his 1986 conviction, there were no resulting adverse immigration consequences until the above-mentioned 2012 DHS notice. During the intervening 25 plus years, the defendant appears to have established himself, been employed, paid his taxes, and fathered three children who are natural born United States citizens, two of whom are employed and the third is attending college. In his affidavit, the defendant states he is “greatly involved in their lives,” “helps them financially,” and that their mother passed away in 1994.
DHS apparently became aware of the defendant as a result of his March 14, 2012 misdemeanor conviction in Richmond County for Driving While Intoxicated and consequent ten-day jail sentence followed by three years of probation. The Court takes judicial notice that in 2012 DHS screened non-citizen inmates at Rikers Island for possible deportation eligibility (See, People v. Cristache, 29 Misc.3d 720, 729, n. 4 [New York City Criminal Court, Queens County 2010] ). In 2003 the defendant incurred a prior conviction for Driving While Intoxicated, also in Richmond County, which did not result in either a jail sentence or DHS action. In fact, on September 13, 1993 another justice of this court granted the defendant's application for a Certificate of Relief from Civil Disabilities from this conviction following an investigation and report from the Probation Department. See Correction Law 702. It appears that until he was sentenced to jail in 2012, the defendant did not attract the attention of federal immigration authorities.
The Conviction in Issue on This Motion
On August 29, 1984, the defendant sold, according to the laboratory report in the court file, one grain of cocaine for $20 to an undercover police officer. The defendant was allegedly arrested in possession of 13 additional bags of cocaine, containing a total of 26 grains of cocaine according to the laboratory report in the court file, as well as the pre-recorded buy money.
After several months of court appearances and a bench warrant from January 29, 1985 to June 14, 1985, the defendant, represented by retained counsel, entered the above-noted guilty plea. This had been the defendant's first arrest.
Discussion
The defendant faults both the Court and defense counsel for not properly advising the defendant of the potential adverse immigration consequences of this guilty plea.
I.
Insofar as the Court's purported failure to advise the defendant of possible deportation consequences, the defendant is not entitled to relief on this motion as a matter of law. The Court made no mention at all of the defendant's immigration status and did not make any representation about potential immigration consequences. Although the defendant obviously knew he had entered the United States without any authority to do so, it is not known if the Court was aware of the defendant's status. Indeed, the same Probation Department that prepared the pre-sentence report in this case (which has not been provided to this Court by the parties), nine years later in 1993 investigated and approved the defendant's eligibility for a Certificate of Relief from Civil Disabilities.
The law in New York at the present time is that if a Court at a plea proceeding fails to advise a defendant that the defendant could be deported as a result of entering a guilty plea, and if the defendant shows that, if so advised, he would have rejected the plea and have instead opted to proceed to trial, the defendant is entitled to vacatur of the plea. People v. Peque, 22 NY3d 168, 198 (2013).
The decision in Peque expressly overruled People v. Ford, 86 N.Y.2d 397 (1995), which had held that a Court's failure to advise a defendant of potential deportation consequences of a guilty plea does not affect the plea's validity.
Because the Court's failure to discuss the potential deportation consequences is on the record, this failure could have been raised on a direct appeal from the conviction and, if successful, the defendant would have been restored to his pre-guilty plea status. (Of course, the defendant at the time had no desire to vacate the judgment and proceed to trial in this case, and, therefore, he did not appeal from the conviction.)
Having not taken an appeal and raised this on-the-record issue, a CPL 440.10 motion to vacate the judgment on this ground must be denied. CPL 440.10(2) ; People v. Simpson, 120 AD3d 412 (1st Dept.2014), lv to appeal denied, 24 NY3d 1046 (2014).
Furthermore, the duty imposed on the Court by the Peque decision, even though it involves considerations of due process and fairness to a defendant to insure that a guilty plea is made with knowledge of its possible deportation consequences, is not retroactively applicable to this defendant's 1986 guilty plea and sentence where his time to directly appeal the conviction has long expired. People v. Llibre, 125 AD3d 422 (1st Dept.2015) ; People v. Jacobs, 46 Misc.3d 1218(a) (Sup.Ct. Bronx County 2015); People v. Lovejoy, 44 Misc.3d 457 (Sup.Ct. Bronx County 2014) ; Compare, People v. Fermin, 123 AD3d 465 (1st Dept.2014) (Peque holding applies retroactively to cases pending on direct appeal).
Furthermore, the ruling in Peque has been held not to apply retroactively to invalidate guilty pleas where the judgment has become final, once the direct appeal process has concluded. People v. Llibre, supra; People v. Jacobs, supra. Thus, at the time of the defendant's guilty plea in 1986, the Court's failure to address this issue did not either then or now invalidate the defendant's plea.
In addition, a defendant claiming a Peque violation must also “establish the existence of a reasonable probability that had the Court warned the defendant of the possibility of deportation, he or she would have rejected the plea and opted to go to trial.” Peque at 198. As will be discussed below with regard to the purported advice given by his attorney, the defendant, despite his present contention to the contrary, cannot meet this burden. CPL 440.30(4)(d) (a CPL 440.10 motion may be denied if an allegation of fact essential to support the motion is made solely by the defendant and is unsupported by any other evidence and under all the circumstances attending the case, there is no reasonable possibility that such allegation is true). Therefore, for these reasons, the Court's failure to advise the defendant of the possible deportation consequences of his guilty plea is not a basis to now vacate the judgment.
II.
The defendant's second ground for vacating the judgment is based on purportedly inaccurate advice given by his attorney concerning the deportation consequences of his guilty plea which is claimed to have constituted ineffective assistance of counsel violative of the defendant's federal and state constitutional rights.
Because his attorney at the time of the guilty plea and sentence is now deceased, the defendant is now the sole source of what was said to him.
The defendant's Affidavit, at par. 9, states in part, “When I pleaded guilty to the felony, my attorney told me that since I was already an illegal alien I was not going to have any problems with immigration and that after I finish doing six months in jail, I would receive a sentence of probation if I pleaded guilty.” The defendant's motion does not discuss what, if anything, was discussed about the probabilities of the defendant's being deported if he opted to go to trial and was thereafter convicted and sentenced to prison.
It is important to recognize that the defendant's Affidavit does not claim to quote exactly what was said. Rather, it is the People's Answer that challenges the defendant's ability to have, after almost 30 years, an exact recollection of the “minute details of his conversations with his attorney” (People's Memorandum of Law, at 10).
The defendant cannot be faulted for not recalling the exact words used by his attorney, because he had no reason to recall them until after the long-delayed deportation proceedings commenced through no fault of the defendant who apparently was not concealing his presence in the United States. Under the circumstances of this case, the likely inability of the defendant to recall exactly what advice he was given by his attorney about the deportation consequences of this guilty plea should not be a reason to deny this motion without at least a hearing.
There is also a further complication presented by the defendant's apparent need for the use of a Court-appointed Spanish language interpreter as reflected on the cover pages of the minutes of the plea and sentence proceedings. Although the defendant made no complaints about not being able to understand his then-retained attorney, the defendant's papers submitted on this motion reflect that the conversation with his attorney was in English. This is yet another reason not to expect that the exact words used by his attorney will be recalled at a hearing.
In this case, the specific advice that the defendant received from counsel concerning deportation consequences prior to pleading guilty, assuming such advice was given, will not be determinable with any degree of certainty at a hearing. As noted above, the passage of decades and the absence of any reason for the defendant to recall the specifics of the conversation militate against such a finding. Furthermore, the defendant has an obvious self-interest in “recalling” the conversation in a light most favorable to his position.
On the other hand, the passage of time before it became necessary for the defendant to recall this advice, and the death of his attorney who cannot now corroborate the defendant's recollection, are factors which, in fairness, cannot be employed to discredit the defendant's account and not, at least, grant the defendant an opportunity to have a hearing on this question.
However, granting such a hearing would serve no useful purpose. In order to prevail on an ineffective assistance claim based on inaccurate advice concerning the potential deportation consequences of a guilty plea, the defendant must show both that he received inaccurate advice about the deportation consequences of a guilty plea and also that, but for this advice, he would not pleaded guilty and have opted to go to trial. People v. Hernandez, 22 NY3d 972, 975 (2013) ; People v. McDonald, 1 NY3d 109, 111 (2003) ; Hill v. Lockhart, 474 U.S. 52, 59 (1985) ; People v. Picca, 97 AD3d 170, 177 (2d Dept.2012).
There is no reasonable possibility that at such a hearing the defendant could establish that but for this advice, even assuming it was given as stated in the defendant's Affidavit, he would have rejected the plea offer and opted to go to trial in this case. See, People v. Cristache, 29 Misc.3d 720, 740 (New York City Criminal Court, Queens County 2010) (self-serving, conclusory and unsupported statements that a defendant would have insisted on going to trial if correct advice had been given are insufficient to establish prejudice, particularly when unaccompanied by either a claim of innocence or an articulation of any plausible defense that he could have raised at a trial, citing United States v. La Bonte, 70 F.3d 1396, 1413 [1st Cir.1995] ).
In People v. Melo–Cordero, 123 AD3d 595, 596 (1st Dept.2014), a hearing was held to have been properly denied pursuant to CPL 440.30(4)(d) where the defendant failed to establish prejudice in his CPL 440 motion in light of the strength of the People's case, the length of the possible sentence after trial, and “the near certain deportation consequences that would have resulted from his conviction after trial ” (emphasis supplied).
Given the defendant's situation at the time of the guilty plea, it would not have been rational for him to have declined the plea offer and opted to go to trial even if he were told that a guilty plea could result in his possibly being deported. The defendant, as stated in his Affidavit, at par. 4, had entered the United States illegally four years earlier and was thus already subject to deportation pending action by the federal authorities. The defendant apparently had remained in the country since 1982 without catching the attention of the federal authorities, and a guilty plea with a promise of a local jail sentence and probation in contrast to a lengthy state prison sentence in the event of a conviction after trial would be the more likely way to continue to escape federal deportation proceedings.
After pleading guilty, the defendant in his Affidavit at 9, states he believed he would not have “any problems with immigration” even though he discussed his “illegal alien” status with his attorney. Although the defendant states he believed he would not be deported as a result of the plea, he does not contest that he knew he was deportable before the plea, and he does not claim that he believed the guilty plea would immunize him from his deportable status.
The People had a strong case if the defendant had chosen to go to trial. The defendant, according to the Criminal Court complaint and the People's Bill of Particulars in the Court file, was arrested in possession of the pre-recorded buy money and 13 bags of cocaine approximately three minutes after selling one bag of cocaine to an undercover police officer. The defendant on this motion claims neither innocence nor suggests a particular defense he would have raised had he gone to trial.
The charges in the indictment of Criminal Sale of a Controlled Substance in the Third Degree and two counts of Criminal Possession of a Controlled Substance in the Third Degree (one count for the cocaine allegedly sold and one count for the 13 bags of cocaine allegedly possessed with intent to sell) were all Class B felonies. At the time of these crimes, those charges, even for a first offender, carried a mandatory minimum indeterminate state prison sentence of one-to-three years and a maximum sentence of 8 1/3 to 25 years. Former PL 70.00(2)(b) and (3)(b).
The defendant's 1986 guilty plea in this case did not change his deportable status nor did it make him manditorily deportable. Ledezma–Galicia v. Holder, 636 F.3d 1059, 1063 (9th Cir.2010). Thus, there was very little “upside” for the defendant to reject the plea offer and opt for trial.
The defendant's motion papers fail to demonstrate a reasonable possibility that at the time of his guilty plea, had he been properly advised of the deportation risks of pleading guilty versus the risks of going to trial, that the defendant had such a strong incentive to remain in the United States that he would have opted to go to trial. Going to trial would have resulted in the strong possibility of both a lengthy state prison sentence and deportation if convicted versus the far lesser deportation risks of pleading guilty and receiving a shorter local jail sentence which would give him a better chance of remaining under the radar of the federal immigration authorities. See, Corrections Law 147 (requiring state prison officials to notify federal immigration authorities concerning alien inmates). See also, People v. Galan, 116 AD3d 787, 790 (2d Dept.2014) (record after a hearing failed to demonstrate that the defendant had such a strong incentive to remain in the United States that there was a reasonable probability that but for his attorney's allegedly deficient advice, he would have rejected the plea offer of probation and risked serving a lengthy prison sentence if convicted after a trial); People v. Soodoo, 109 AD3d 1014, 1016 (2d Dept.2013) (motion to vacate held to have been properly denied without a hearing based on the absence of sufficient allegations to raise a factual issue of even a reasonable possibility that the defendant had such an incentive to remain in the United States that would have made it rational for the defendant to reject the favorable plea offer and proceed to trial and risk a longer prison sentence if convicted).
Indeed, under the facts of this case where the defendant was deportable whether or not he was convicted, a “strong incentive to remain in the United States” would have resulted in a course of action that had the best chance of avoiding attracting the attention of the federal authorities, which was a guilty plea and a local jail sentence.
At the time of the defendant's guilty plea in 1986, he apparently did not have such strong ties to the United States that the possible deportation consequences of a guilty plea would have caused him, if he had been so advised, to reject the plea offer and risk upon conviction after a trial a far lengthier prison sentence. When arrested in this case, the defendant, as reflected in the Court file, reported to the New York City Criminal Justice Agency that he resided at his current address in Brooklyn for five months, that he lived there alone, that he had previously lived in Brooklyn with a friend for two months, that he was unemployed, and that he did not expect anyone to be present for his initial arraignment.
Therefore, this case is distinguishable from People v. Picca, supra where the defendant was entitled to a hearing, because the defendant's motion sufficiently alleged that his lengthy and extensive ties to the United States at the time of his guilty plea would not have made it irrational to risk going to trial and receiving a prison sentence, if an acquittal would avoid the deportation consequences of a guilty plea.
Over the years since his 1986 guilty plea, the defendant's circumstances appear to have greatly changed. However, this Court is constrained to make its decision in 2015 based on what the defendant would have rationally done based on his circumstances in 1986, not in 2015.
The defendant, even assuming he received the mis-advice he claims regarding the consequences of this guilty plea, has not shown this advice at the time it was given in 1986, under all the circumstances of this case, constituted ineffective assistance of counsel under either State or Federal standards, both of which require some showing of prejudice. People v. Caban, 5 NY3d 143, 152 (2005) ; Hill v. Lockhart, 474 U.S. 52, 59 (1985) ; Strickland v. Washington, 466 U.S. 668, 687 (1984). The defendant has not sufficiently alleged that but for this mis-advice, he would have not pleaded guilty and have opted to go to trial with its greater risks of both a lengthier sentence and deportation.
Accordingly, the defendant's motion is denied.