Opinion
05-1026
01-09-2013
The People of the State of New York, v. Andrez James, Defendant.
Rami Fakhoury, Esq., Attorney for Defendant Robert H. Middlemiss, Esq. Orange County District Attorney's Office
Rami Fakhoury, Esq.,
Attorney for Defendant
Robert H. Middlemiss, Esq.
Orange County District Attorney's Office
, J.
The defendant moves pursuant to CPL§ 440.10 for an order vacating a judgment previously imposed by this Court, claiming that he was denied his right to the effective assistance of counsel in plea negotiations in 2005. The defendant claims that counsel failed to advise him that his guilty plea would result in deportation and that had he known of this consequence he would have rejected th plea offer and gone to trial. On December 7, 2012 a hearing was held on the motion. The following facts are drawn from the testimony at the hearing, a review of the Court's file and the submissions of counsel.
FACTS
On August 5, 2005 the defendant was arrested on a warrant in the City of Middletown. The defendant was additionally charged with the misdemeanor of criminal possession of a controlled substance in the seventh degree for allegedly possessing cocaine at the time of his arrest. He was arraigned with counsel that day and bail was set at $500 on the new charge. The bail was posted on August 13 and the defendant was released from custody. Following several adjournments, a hearing on the admissibility of evidence was scheduled for November 2, 2005. On that day, in a short colloquy with the judge, the defendant pled guilty to criminal possession of a controlled substance in the seventh degree and was sentenced to time already served. There was no discussion of any immigration consequences of the plea and the record is devoid of any other information regarding plea negotiations. The police arrest sheet, filed with the Court on August 5 and available for defense counsel's inspection during the course of the case, lists the defendant's place of birth as "Jamacia" (sic).
In September of 2007, the federal government commenced deportation proceedings against the defendant based on two separate grounds. First, the government alleged that the defendant was subject to mandatory removal because of the 2005 misdemeanor controlled substance conviction in Middletown. Second, it alleged that the defendant was subject to removal for having been convicted of two crimes involving moral turpitude: the misdemeanors of attempted petit larceny in 1999 and petit larceny in 2004. Deportation for the moral turpitude convictions is in the discretion of the Immigration Court. In August of 2012, the defendant was incarcerated on this immigration matter and removal proceedings continue against him.
The defendant and his attorney at the time of the plea both testified at a hearing held before this Court on December 7, 2012. The attorney acknowledged that at the time of the plea in 2005 he had no discussions with the defendant regarding any immigration consequences and did not recall whether he was even aware of the defendant's immigration status. The lawyer informed the defendant of the plea offer and advised that he accept it.
The defendant testified that he was born in Jamaica in 1978. He came to the United States at the age of nine and except for a one-week return visit in 1995 he has lived here ever since. He was granted lawful permanent resident status in 1995. The defendant's mother, father and four sisters all live in the United States and he has no family in Jamaica. The defendant's three daughters, twelve years old, nine years old, and nineteen months old, all live in Orange County.
The defendant testified that he spoke to his attorney on the Middletown misdemeanor only in court after he posted bail and never during the nine days he was incarcerated. The lawyer did not inquire regarding the defendant's immigration status and they had no discussion regarding the immigration consequences of a guilty plea to the controlled substance charge. The defendant was not advised that a plea to the charge would subject him to deportation.
While portions of the defendant's testimony regarding his drug use and prior criminal activity strain believability, I fully credit his testimony regarding his attachment to his family and his life with them here in the United States. I credit his testimony that had he been accurately informed of the consequences of his guilty plea in 2005, he would have rejected the plea offer and gone to trial if necessary.
DECISION
A defendant challenging the validity of his guilty plea on the grounds of ineffective assistance of counsel must satisfy the two-prong test set out in Strickland v Washington, 466 US 668 (1984). The defendant must establish both that counsel's performance was deficient and that the deficient performance resulted in prejudice to the defendant. Id. at 687. The first prong requires a showing that the representation fell below an objective standard of reasonableness. Id.
To satisfy the second prong, the defendant must show a reasonable probability that but for counsel's error, he would not have pled guilty. Id.
In 2010 the United States Supreme Court decided Padilla v Kentucky, 559 US____, 130 S Ct 1473. The Supreme Court held that criminal defense attorneys must inform their non- citizen clients of the potential deportation consequences of a guilty plea, and that the failure to do so renders the representation constitutionally deficient. The Court ruled that "counsel must, at the very least, advise a defendant that a criminal conviction may have adverse immigration consequences." 130 S Ct at 1481, n. 8.
Following the lead established by the Appellate Term in People v Nunez, 30 Misc 3d 55 (9th & 10th JD, 2010), two Appellate Division decisions have held that the Padilla ruling applies retroactively. People v Rajpaul, 100 AD3d 1183, 2012 Slip Op 7901 at 4 (3d Dept, 2012) citing People v Oouch, 97 AD3d 904 (3d Dept, 2012); People v Baret, 99 AD3d 408 (1st Dept, 2012). The constitutional standards regarding effective representation set forth in Padilla are, therefore, applicable to the instant case.
Federal immigration law mandates a non-citizen's deportation for any controlled substance conviction except for the most trivial of marijuana possession offenses. 8 USC § 1227 (a)(2)(B)(i). See Padilla, 130 S Ct at 1483; People v Hassan, 36 Misc 3d 160A (App. Term, 2d & 11th JD, 2012). Under the first prong of the Strickland test, an attorney's failure to advise his client that deportation is a clear consequence of a guilty plea constitutes ineffective assistance of counsel. Padilla at 1481; People v Carty, 96 AD3d 1093 at 1093-94 (3d Dept, 2012). Counsel's representation of the defendant in 2005, therefore, falls below an objective level of reasonableness. The fact that counsel was apparently unaware of the defendant's immigration status neither changes this conclusion nor mitigates the harm done. The police arrest sheet filed at the time of the defendant's arrest should have placed counsel on notice regarding the critical immigration issue. See Rajpaul, supra, 2012 Slip Op 7901 at 3 (police report indicating that defendant was a citizen of Guyana triggered counsel's duty to inquire regarding immigration status); cf Carty, supra at 1095-96 (where public defender's intake interview sheets indicated that defendant was a U.S. citizen, counsel had no obligation to inquire regarding non-citizen's immigration status). As the Supreme Court has noted, "deportation is an integral part — indeed, sometimes the most important part — of the penalty that may be imposed on non-citizen defendants who plead guilty to specified crimes". Padilla at 1480. In light of the deportation consequences for non-citizen defendants and a police arrest sheet indicating that his client was born in a foreign country, the attorney's failure to conduct a simple inquiry regarding the defendant's citizenship fell below the objectively reasonable standard established by Strickland and Padilla.
Under the second prong of the Strickland test, the defendant must demonstrate prejudice. The defendant must show a reasonable probability that but for counsel's deficient performance he would not have pled guilty. 466 US at 687. The defendant's credible testimony established that he would not have accepted the plea bargain had he been informed that a guilty plea would result in his deportation. The defendant need not establish that he would have taken the case to trial and been acquitted. The inquiry into prejudice "does not require a prediction analysis of the likely outcome of the trial." Oouch, supra at 906. It is enough to establish that had he been properly advised of the immigration consequences of the plea he would have sought a more favorable offer or gone to trial. See People v Ramos, 100 AD3d 487 (1st Dept, 2012).
I find that the defendant has successfully established that had he been properly advised under the Padilla standard, he would have rejected the plea offered and sought a plea agreement without the disastrous immigration consequences he now faces. The cases relied on by the District Attorney's Office in opposition to the motion generally involve defendants charged with serious felony crimes facing years of potential incarceration. The dynamics involved in the practice of plea bargaining in local criminal courts are quite different. On the low-level victimless offense charged in the present case, the District Attorney's Office was satisfied with a sentence of the nine days the defendant had already served in jail. Unaware of the deportation proceeding to come, the defendant was likely satisfied to simply have the case over. I find it reasonable to believe defense counsel could have obtained a more favorable plea agreement had he sought one.
A finding of prejudice is not foreclosed by the fact that the deportation proceeding is based in part on other convictions where those other convictions are misdemeanors subject to discretionary relief from removal. Ramos, supra. People v Webb, 32 Misc 3d 1228A, 2011 NY Slip Op 51482U at 15 (Dist Ct, Nassau Co 2011). In the instant case, the defendant's other convictions are subject to discretionary relief.
The defendant's credible testimony has established that he would not have accepted the plea bargain had he been informed that a guilty plea would result in his deportation. He has established both that counsel's performance was deficient under Padilla and that he was prejudiced by the deficiency. My factual findings are sufficient to undermine confidence in the outcome of the plea process. See Strickland 694; Hill v Lockhart, 474 US 52 at 59 (1985). The defendant's motion to vacate the judgment of conviction imposed in this Court on November 2, 2005 is granted, the guilty plea is vacated and the matter is restored to the calender in this Court for a conference on January 28, 2013 at 9 a.m.
The foregoing constitutes the Decision and Order of the Court.
Dated: January 9, 2013
Middletown, New York
___________________
Hon. Steven W. Brockett
City Court Judge
Entered thisday of January, 2013
___________________
Clerk of the Court
This legal conclusion is compelled by the retroactive application of the clear language of Padilla. Whether defense attorneys in Middletown City Court in 2005 were routinely satisfying this objective standard in plea discussions with their clients is not as clear. See People v Mercedes, 2012 NY Slip Op 52019U at 10 (Sup Ct NY County, 2012) for additional discussion regarding past professional norms of practice of the criminal defense bar.