Opinion
5447-1988
01-10-2012
The People of the State of New York, v. Juan Delcastillo, Defendant.
For People of the State of New York Robert T. Johnson, Esq. District Attorney, Bronx County (Brian J. Reimels, Esq., of Counsel) For Defendant Calvin D. Garber, Esq.
For People of the State of New York
Robert T. Johnson, Esq.
District Attorney, Bronx County
(Brian J. Reimels, Esq., of Counsel)
For Defendant
Calvin D. Garber, Esq.
, J.
At the root of this motion to withdraw Defendant Juan Delcastillo's guilty plea(s) entered in 1996 is the impact of that disposition upon Defendant's current immigration status. To first clarify the record, the Court previously ordered the parties to amplify the evidence concerning the exact charges that forms the basis of the Department of Homeland Security's deportation prosecution presently pending before the United States Immigration Court against Defendant, a resident alien, which seeks to deport him to his native Dominican Republican. The parties have now reported.
Defendant having moved, pursuant to CPL §440.10, to vacate his conviction for Assault in the Second Degree (Penal Law §120.05) and for Bail Jumping in the First Degree (Penal Law §215. 57) entered in Indictment No. 8114-1988, to which he claims he would not have pleaded guilty to those charges if he knew that he would be subject to deportation because of his conviction. As a result of the guilty plea(s), the Court sentenced Defendant to time served, probation of five years, community service and imposition of mandatory surcharge and victim's assistance fees (see, Defendant's Exhibit A).Initially, the Prosecutor opposed Defendant's relief and said his office's records showed Defendant was in fact convicted of Criminal Possession of a Controlled Substance in the Second Degree (see, Penal Law §220.18[1]). Because of the confusion in the record concerning the actual underlying plea (s) and indictment(s), the Court directed the parties to clarify the status of the immigration litigation and what charges Defendant actually pleaded.
Report of Parties
Defendant reports the removal proceeding in Immigration Court involves section 237(a)(2)(b)(I) of the Immigration and Nationality Act (as amended by the Illegal Immigration Reform and Immigration Responsibility Act of 1996). Homeland Security avers Defendant must be deported because of his alleged narcotics (cocaine) conviction contained in Indictment No. 5447-88, but does not address the charges contained in Indictment 8114-1988.
As a result of the Court's order for further illumination, the parties now agree that Defendant actually plead guilty only to assault and bail jumping in Indictment No. 8114-1998, and not to a narcotics violations in Indictment No. 5447-1998. Notwithstanding, the prosecutor opposes the prayed for hearing upon incompetent assistance of counsel since, he says, defense counsel had no obligation to advise Defendant concerning potential immigration consequences of a plea at the time of the guilty plea(s) because such advice was not required then and failure to so advise was not grounds for an ineffective assistance of counsel claim. Therefore, regardless of the actual crimes pleaded, immigration consequences played no role in the plea(s) and no legal basis exists for Defendant's relief now. Consequently, no hearing is required.
Defendant provided the Court with a copy of the Notice to Appear before the Immigration Court issued to him. The Immigration Court so advises that the Delcastillo matter is scheduled for appearance on April 24, 2012, at the Court sitting in New York City.
Legal Arguments
Defendant relies upon the Supreme Court's decision in Padilla v. Kentucky, — US —, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010) as basis for arguing that his criminal trial counsel's failure by omission to advise about the effect of a guilty plea upon his immigration status results in ineffective assistance of counsel and therefore requires that the guilty plea (s) be vacated. According to Defendant, Padilla expands the protection afforded non-citizen defendants in criminal cases because our Court of Appeals previously found that erroneous advice concerning deportation consequences can constitute ineffective assistance of counsel where Defendant says he would not have pled guilty except for that advice (see generally, People v. McDonald, 1 NY3d 109 [2003][affirmative advice]). Further, Defendant maintains the Court is obligated to conduct a hearing to determine whether his plea was coerced as a result of ineffective assistance of counsel (see generally, People v. Mack, 203 AD2d 131 [1st Dept. 1994])
Defendant appears to claim he requested advice from counsel upon the immigration issue but received no response.
The prosecutor argues against Padilla's retroactivity (see generally, People v. Feliciano, 31 Misc 3d 128A [Sup Ct. App Term 1st Dept. 2011]). Instead, the District Attorney, citing Feliciano, says counsel's conduct must be measured by professional norms existing at the time — nearly fifteen years ago — when Defendant's plea was originally taken. The prosecutor says that the courts did not recognize failure to advise a defendant regarding immigration consequences as a ground for ineffective assistance of counsel in a criminal case when the plea was entered (see generally, People v. Ford, 86 NY2d 397 (1995) (the court's and counsel's failure to advise of plea's collateral effect upon immigration not grounds for vacating guilty plea). Consequently, the Ford case indicates the status of state law at the time of Defendant's plea in this case.
Legal Discussion
Based upon newly submitted evidence, the Court finds no dispute exists that Defendant was a lawful permanent resident when the plea (s) was entered and that his pending removal is based upon an alleged criminal narcotics conviction. Nothing presently in the record shows Defendant's criminal counsel advised him about the effect of a guilty plea upon his immigration status, but there appears an issue concerning whether Defendant asked his counsel about that effect (see, Affirmation of Calvin D. Garber, Esq., Exhibit C. ¶3).
Relying upon the high court's decision in Padilla, supra., Defendant says that his criminal counsel's failure (omission) to advise him about the effect of a guilty plea upon his immigration status results in his receiving ineffective assistance of counsel. This allegedly requires that the guilty plea be vacated. According to Defendant, Padilla expands the protection afforded non-citizen defendants in criminal cases because our Court of Appeals has held that erroneous advice concerning deportation consequences can constitute ineffective assistance of counsel where Defendant says he would not have pled guilty except for that advice (see generally, People v. McDonald, 1 NY3d 109 [2003]). Further, Defendant maintains that the Court is obligated to conduct a hearing to determine whether his plea was coerced as a result of ineffective assistance of counsel (see generally, People v. Mack, 203 AD2d 131 [1st Dept. 1994]).
Based upon Defendant's affidavit (Exhibit C), the Court orders an evidentiary hearing to determine whether Defendant specifically requested legal advice from counsel about the effect of a guilty plea upon his immigration status and what, if any, was that advise. The hearing is required by the Court to determine the circumstances surrounding the legal advice regardless of the law's status in 1996 concerning incompetent counsel who failed to advise about deportation issues. In McDonald, our Court of Appeals found that erroneous plea advice concerning deportation consequences can constitute ineffective assistance of counsel in cases where Defendant would not have pled guilty except for that advice (see generally, People v. McDonald, supra). Consequently, the Court requires clarification of the advice previous counsel provided regardless of Padilla.
BASED UPON the foregoing, it is
The Court read the following papers in this motion: (1) Defendant's Notice of Motion, Affidavit, with exhibits; (2) Defendant's Memorandum of Law; (3) Affirmation in Opposition with Exhibits; (4) Affirmation of Calvin D. Garber, Esq., with exhibits, (5) Reply Affirmation in Opposition, (4) Prosecutors letter dated August 17, 2011; (5) Reply Affirmation, dated September 18, 2011, and (6) Defendant's Submissions including letter from Bretz and Covington Immigration Law Firm and attachments.
ORDERED that the parties are to contact the Clerk of the Court within five days to schedule an evidentiary hearing within 45 days of entry of this order, and it is further
ORDERED that the Clerk is to note upon the record that Defendant's CPL §440.10 motion, seeking to vacate his conviction for Assault in the Second Degree (Penal Law §120.05) and for Bail Jumping in the First Degree (Penal Law §215. 57) is SUSPENDED pending the evidentiary hearing ordered herein.
The foregoing constitutes the Order of the Court.
Dated: Bronx, New York
January 10, 2012
_________________________________
HON. DOMINIC R. MASSARO, JSC