Opinion
15930-95.
Decided February 8, 2010.
for the People: Hon. Charles J. Hynes, District Attorney, Kings County, Assistant District Attorney David Korngold, of counsel.
for Defendant, Tony Cavatus, pro se.
Defendant Tony Cavatus has submitted a pro se motion dated November 2, 2009 seeking to set aside his November 8, 1996 conviction pursuant to CPL 440.10 on the grounds of ineffective assistance of counsel and involuntariness of his plea in the context of deportation issues. He also alleges that his plea was involuntary by reason of mental disease or defect. The People have submitted a response dated January 22, 2010 in opposition to defendant's motion.
Defendant, a Haitian citizen, was charged with robbery in the second degree and related crimes in the above-captioned indictment. Based upon his lesser involvement in the crime than that of his co-defendants he was offered a favorable plea to criminal possession of stolen property in the fifth degree (Penal Law § 165.40), which he accepted. Defendant pled guilty to that A misdemeanor offense on November 8, 1996 before this Court and was sentenced that same day to a one-year definite term of imprisonment, the equivalent of time served.
In contrast, the two co-defendants Bruno and Lewis indicted with defendant each pled guilty to robbery in the second degree on November 7, 1996 and were subsequently sentenced to 3-6 years and 2 1/4 — 4 ½ years respectively in state prison.
Some 10 years later defendant was notified by the Immigration and Naturalization Service ("INS") on August 8, 2006 that he was subject to removal from this country pursuant to Section 237(a)(2)(A)(iii) of the Immigration and Nationality Act (the "Act") based upon his conviction in the above-captioned case, according to a copy of Immigration Form I-862 attached to defendant's moving papers. The specification indicated that defendant had committed an aggravated felony as defined in Section 101(a)(43)(G) of the Act — a theft-related offense for which the term of imprisonment imposed was at least one year. Defendant, who still has not been deported some three years later, now makes three claims for vacatur of his judgment of conviction.
The People in their answer state that it was on August 1, 2007 that Immigration and Customs Enforcement initiated deportation proceedings against defendant, who is a legal resident alien.
Defendant now maintains his plea of guilty was not knowingly, voluntarily and intelligently made because the Court failed to apprise him of any future immigration consequences resulting from his guilty plea. This Court is procedurally barred from considering this contention since the Court's "failure" to advise defendant of any deportation consequences is a matter of record which would have permitted this issue to have been reviewed on direct appeal. See CPL 440.10(2)(c); People v. Cooke, 67 NY2d 100, 104 (1986). In any event, it is well settled that deportation is a collateral, not a direct, consequence of a conviction and, thus, a trial court is not required to advise a defendant of this possible consequence prior to accepting a plea of guilty. See People v. Ford, 86 NY2d 397 (1995); People v Delarossa , 57 AD3d 559 (2d Dept 2008); lv denied 12 NY3d 782 (2009); People v. Sanchez-Martinez , 35 AD3d 632 (2d Dept 2006), lv denied 8 NY3d 990 (2007); see also People v Innocente, 25 Misc 3d 141(A) (App Term 9th and 10th Jud Dists. Dec 2, 2009).
A telephone conversation between chamber's staff and a clerk of the Appellate Division — Second Department confirms that defendant never appealed his conviction in the instant case. In addition, defendant's moving papers contain a copy of a pro se "Writ of error Coram Nobis," dated November 15, 2007, filed in the Appellate Division, Second Department, alleging ineffective assistance of counsel. This application was rejected by that Court because there was no appeal pending, nor any record of any papers previously filed in that Court.
The Court notes that CPL 220.50(7), enacted in 1995, requiring a court to advise a defendant that his felony guilty plea may result in defendant's deportation clearly provides that the failure to so advise does not affect the voluntariness of the plea. Of course, it is proper and by far the better practice to so advise defendants where an immigration issue is apparent in the case.
Defendant further contends that he was denied the effective assistance of counsel in that his court-appointed attorney "at no point in time" advised him of the deportation consequences of his guilty plea. Defendant's claim is unavailing since the failure to give such advice, as opposed to giving incorrect advice, has repeatedly been held not to constitute ineffective assistance of counsel. See People v McDonald, 1NY3d 109 (2003); People v Ford, supra; People v Argueta , 46 AD3d 46 (2d Dept 2007), lv denied 10 NY3d 761 (2008); People v. Felipe, 15 Misc 3d 1124(A), (Sup Ct. Kings County 2007); see also United States v Couto, 311 F3d 179 (2d Cir 2002).
On October 13, 2009 the United States Supreme Court heard oral argument addressing ineffective assistance of counsel claims in the context of deportation consequences. Commonwealth v Padilla, 253 SW3d 482 (Ky. 2008) cert granted sub nom. Padilla v Kentucky, ___US___, 129 S Ct 1317 (2009). See Michael J. Wildes, " Padilla Highlights Immigration Consequences of Criminal Proceedings, NYLJ, Jan. 26, 2010, at 4 col 1.
Defendant also claims that his judgment of conviction must be vacated by virtue of his mental disease or defect, which made him incapable of understanding or participating in the plea proceedings. See CPL 440.10(1)(e). In support of that argument defendant has annexed records from December 2008 and 2009 alleging that he suffers from hypertension and "adjustment disorder" which, even according to defendant's own papers, is a short-term condition that occurs when a person is unable to cope with, or adjust to, a particular source of stress. Defendant claims he told his attorney that he was mentally ill and counsel told him "don't mention that you're mentally ill because they will put you somewhere you don't want to be" and if he pleaded guilty "he would go home right know" [sic].
Defendant's moving papers are not paginated.
Initially it should be noted that defendant's moving papers on this issue, standing alone, hardly suffice to meet the statutory requirement of sworn allegations of fact to support this claim. See CPL 440.30(3)(b). Moreover, defendant has failed to demonstrate that he was suffering from a mental disease or defect when he took his plea in 1996. See People v Comfort, 278 AD2d 872 (4th Dept 2000). Specifically, nothing in defendant's exhibits indicate that defendant, at the time of his plea allocution, was incapable of understanding the nature of the proceedings. Indeed, defendant's assertions are belied by the November 8, 1996 plea minutes he has annexed to his moving papers. Defendant was clearly responsive to all of this Court's questions, even to the extent of indicating that he had a job as a mechanic "waiting for me" and asking to see his mother. See People v Kaszubinski , 55 AD3d 1133 (3d Dept 2008), lv denied 12 NY3d 855 (2009); People v Doolittle, 231 AD2d 586 (2d Dept 1996), lv denied 89 NY2d 921 (1996). This Court, having been in a position to assess defendant's demeanor at the time of the plea, did not appear to have any reason to question defendant's competence during the plea. See People v Jenks, ___ AD3d ___, 2010 WL 184143 (3d Dept Jan 21, 2010); People v Ball , 8 AD3d 818 (3d Dept 2004). The Court is now satisfied that defendant's present moving papers do not provide any cognizable grounds to disturb the plea or to require an evidentiary hearing based on the psychiatric issues now raised or on any
other ground. Cf. People v Fixter, 79 AD2d 861 (4th Dept 1980).
The Court notes, however, that defendant may be eligible for some relief from the Department of Homeland Security and the Immigration Court based on his status as a Haitian national. He may be afforded temporary Protection Status on account of that country's recent devastating earthquake. See also (especially regarding the recommendation to narrow the definition of "aggravated felonies") Marcia Coyle, Law Firm Recommends Major Change to Immigration Courts, NYLJ, Feb 3, 2010 at 2, col 1; Report of ABA Commission on Immigration, Reforming the Immigration System (2010).
Clearly, defendant took advantage of the benefits of a favorable plea offer which permitted his immediate release, based on the time he had already served. The Court cannot now assist him in avoiding possible deportation consequences arising from his commission of the underlying offense in the case at bar, as well as possibly arising from other crimes which are not the subject of this 440 motion. Since defendant's moving papers provide no legal grounds for the relief he seeks, the Court now summarily DENIES his pro se motion to vacate this judgment of conviction.
The People's opposition papers state that based upon defendant's rap sheet and the files and records of the U.S. Attorney's Office they learned that defendant was convicted on October 25, 2002 in the U.S. District Court for the Eastern District of New York of Uttering Counterfeit Currency ( 18 USC § 472) and was sentenced to three years probation. On April 2, 2005, defendant was arrested for assaulting his mother. Those charges were later dropped, but on October 2, 2006, defendant was imprisoned for violating his federal probation based on those and other charges. On October 29, 2006, defendant was sentenced in federal court to 10 months in jail and two additional years of supervised release. Although not addressed by the People, research discloses that defendant in fact successfully appealed his probation revocation. The Second Circuit held that the District Court's erroneous failure to make a finding of good cause before admitting hearsay testimony was not harmless. The Court vacated the District Court's revocation judgment and remanded the case for further proceedings consistent with the Second Circuit Court's opinion. See United States v Nixon Bernadel [aka defendant Tony Cavatus] 228 Fed Appx 95, 2007 WL 1206973 (2d Cir 2007).
The Court also notes that the return address on defendant's instant motion is the Orange County Jail in Goshen, New York.
The Clerk of the Court is directed to send a copy of this Decision and Order to defendant Tony Cavatus aka Bernadel Nixon, ANo. 041483325, Orange County Jail, 110 Wells Farm Rd, Goshen, NY 10921 and to Assistant District Attorney David Korngold, Kings County District Attorney's Office, 350 Jay Street, Brooklyn, New York 11201.
IT IS SO ORDERED.