Opinion
10335/98.
Decided December 24, 2010.
Daniel S. Kratka, Esquire, Wilens Baker, P.C., New York, New York, for the defendant.
Sherene A. Crawford, Esquire, Assistant District Attorney, New York County District Attorney's Office, New York, NY, for the prosecution.
Defendant Gleni de Jesus stands convicted by plea of guilty of one count of attempted criminal sale of a controlled substance in the third degree (PL §§ 110/220.39 [1]). She now moves to vacate her judgment of conviction pursuant to Criminal Procedure Law § 440.10(1)(h) on the ground that she received ineffective assistance of counsel at the time of her plea. Specifically, defendant alleges that the failure of her trial counsel to advise her that her conviction would subject her to automatic deportation pursuant to 8 USC § 1227(a)(2)(B)(i) violated her right to effective assistance of counsel under Padilla v. Kentucky, — US —, 130 SCt. 1473 (2010). The People oppose the motion.
Defendant had formerly been known as Altagracia Hernandez, reflecting her middle name and her mother's maiden name.
On December 10, 2010, this court granted defendant's motion, to the extent of issuing an order directing that a hearing be held on the issues of whether defendant's plea counsel's representation fell below an objective standard of reasonableness under Strickland v. Washington, 466 US 668, 688 (1984), and whether, as a result of counsel's representation, defendant suffered prejudice ( see Hill v. Lockhart, 474 US 52, 59). This written decision explains the court's order.
I. FACTUAL AND PROCEDURAL BACKGROUND
On July 29, 1998, an officer of the New York Police Department observed defendant hand Theo Stratus, an individual charged separately, a tin of cocaine in exchange for a sum of United States currency. The officer arrested defendant and placed her in the rear of his patrol car. He later recovered two glassines of heroin and a tin of cocaine from the seat where defendant had been sitting. On December 2, 1998, defendant was indicted on charges of criminal sale of a controlled substance in the third degree (PL § 220.39) and criminal possession of a controlled substance in the third degree (PL § 220.16), both class B felonies, in connection with the incident.
On May 4, 1999, pursuant to a plea agreement, defendant pleaded guilty to one count of attempted criminal sale of a controlled substance in the third degree (PL §§ 110/220.39[1]) in full satisfaction of the indictment. During the plea allocution, the court offered the following warning to defendant as to the immigration consequences of her pleading guilty to that charge:
The justice who took defendant's guilty plea and imposed sentence has now retired.
THE COURT: Madam, since you were not born in this country, I must advise you that if you are not a citizen or a resident alien, as a result of the plea of guilty, you may be deported. Now have you understood everything that I've said through the interpreter?
DEFENDANT: Yes.
(Supplemental Affirmation of Daniel S. Kratka, Esquire dated May 19, 2010 [Kratka Affirm.], Exh. F, Transcript of plea proceedings, May 4, 1999 [[Tr., May 4, 1999], at 6-7).
On June 24, 1999, defendant was sentenced to five years' probation with intensive supervision. Defendant's time to appeal expired on July 24, 1999 (CPL § 460.10[a]) without an appeal having been taken.
On January 20, 2010, defendant's predecessor counsel filed the instant motion on her behalf to vacate her conviction pursuant to CPL § 440.10. Thereafter, defendant retained new attorneys who filed supplemental papers in support of the motion on May 21, 2010. New counsel did not adopt the arguments advanced by predecessor counsel in January 2010, arguing solely that defendant's conviction should be vacated pursuant to the Supreme Court's subsequent decision in Padilla due to plea counsel's failure to have advised defendant that her conviction would subject her to automatic deportation. Defendant claims that she would not have pleaded guilty had she known of the immigration consequences that would ensue. Defendant has been the subject of removal proceedings commenced by United States Immigration and Customs Enforcement since February 13, 2009.
This court heard oral argument from the parties and received briefing on the issue of whether Padilla v. Kentucky should be applied retroactively to cases on collateral post-conviction review. (Letter to the court from Wilens and Baker, P.C., by Dori Silverman, Esquire dated June 29, 2010; Letter to the court from the New York County District Attorney (DANY) by Barbara Hutter, Esquire and Sherene Crawford, Esquire dated July 21, 2010 [DANY July 21 letter]). For several months during the pendency the parties discussed a possible consensual resolution, but the effort ultimately proved unsuccessful.
Defense counsel's June 29 letter requested that the court follow People v. Bennett , 28 Misc 3d 575 (Crim. Ct. Bronx Co. 2010) and apply Padilla to the instant case. The People's July 21 letter advised the court that they agreed that the rule of Padilla applied to cases such as that of defendant, as to which direct appellate review had concluded prior to the issuance of the Supreme Court's ruling in Padilla, but noted that their position was evolving in light of developments in the case law. They also stated that their position was that a claim of ineffective assistance of counsel should be evaluated based upon objective standards of reasonableness as measured by prevailing professional norms at the time the defendant's plea.
On September 20, 2010, the People filed a response in opposition to the instant motion, advising that they had "adjusted" their earlier position and now believe Padilla is not retroactively applicable on collateral review.
II. LEGAL STANDARDS
A. CPL § 440.30
In determining whether a CPL § 440.10 motion is meritorious, the court must grant the motion without conducting a hearing if the moving papers allege a ground constituting a legal basis for the motion (CPL § 440.30[a]), which ground, if factually based, is supported by sworn allegations of fact (CPL § 440.30[b]), and the sworn factual allegations essential to the motion are either conceded by the People or are conclusively substantiated by unquestionable documentary proof. (CPL § 440.30[c]).
The court may, nonetheless, upon reaching the merits still deny the motion without a hearing, if the moving papers, inter alia, fail to allege a ground constituting a legal basis for the motion (CPL § 440.30[a]) or fail to allege sufficient facts to support the legal ground asserted (CPL § 440.30[b]; People v. Session, 34 NY2d 254, 255-256). The motion may also be denied if an allegation of fact essential to support the motion (i) is contradicted by a court record or other official document or is made solely by the defendant and is unsupported by any other affidavit or evidence, and (ii) under these and all of the other circumstances attending the case, there is no reasonable possibility that such allegation is true. (CPL § 440.30[d]). Only in the event that the court does not determine the motion pursuant to the other provisions of CPL § 440.30 must a hearing be conducted. (CPL § 440.30).
B. Constitutional Right to Counsel Standards
The United States Constitution affords a defendant in a criminal case the guarantee of effective assistance of counsel to mount a defense. ( U.S. Const., amend. VI). In order to establish a constitutional violation under the federal Sixth Amendment standard, a defendant must satisfy a two-pronged test, demonstrating first, "that counsel's representation fell below an objective standard of reasonableness" ( Strickland v. Washington, supra, 466 US at 688), and second, that the defendant suffered prejudice, that is, "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." ( Id., at 694). The Supreme Court has explained that:
a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct. . . . [T]he court should keep in mind that counsel's function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.
( Id., at 690).
A defendant's guilty plea will be upheld if it is a voluntary and intelligent choice made with the understanding of the various alternative courses of action available. ( Hill v. Lockhart, supra, 474 US at 56). Where the conviction was by plea, a defendant's allegations of ineffective assistance of counsel "must be sufficient to show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.'" ( Id., at 59; People v. McDonald , 1 NY3d 109 , 115).
C. Padilla v. Kentucky
In Padilla v. Kentucky, supra, the United States Supreme Court was presented with the issue whether defense counsel, to be constitutionally effective, had an obligation to advise the defendant that his plea of guilty to a controlled substance offense would result in his automatic deportation. ( Padilla v. Kentucky, supra, 130 SCt. at 1478).
In evaluating the petitioner's claim, the Supreme Court reviewed the history of federal immigration law, noting the dramatic changes in its landscape over the course of the past ninety years, and the concurrent expansion of the class of deportable offenses and constriction in authority of the courts to alleviate the harsh consequences of deportation (removal). ( Id., at 1478). Notable among the changes cited by the Supreme Court were the elimination by Congress in 1990 of the procedure known as judicial recommendation against deportation (JRAD), under which sentencing courts could recommend that a foreign national not be deported; the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214; and the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.L. No. 104-208, 110 Stat. 30094, in which Congress eliminated the attorney general's authority to grant discretionary relief from deportation, the exercise of which had prevented the deportation of 10,000 non-citizens in the five-year period preceding 1996. ( Id., at 1479 [citing INS v. St. Cyr, 533 US 289, 296 (2001)]). The Padilla court concluded that:
These changes confirm our view that, as a matter of federal law, deportation is an integral part — indeed, sometimes the most important part — of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.
( Id., at 1481).
In Padilla, the Supreme Court rejected the view of the Kentucky Supreme Court, widely shared among the federal Circuit Courts of Appeals and many state courts, that defense counsel has no constitutional obligation to inform a defendant prior to the entry of a guilty plea of the possible deportation resulting from the criminal conviction because such consequences are merely collateral to the criminal proceeding. ( Id., at 1481). The Court eschewed any distinction between direct and collateral consequences in the standard for "reasonable professional assistance" in its Strickland jurisprudence, and declined to so categorize the issue before it. ( Id., quoting Strickland, supra, 466 at 689). Characterizing deportation as a "particularly severe penalty'" which is "intimately related to the criminal process" ( id. [citation omitted]), and assessing its severity as "the equivalent of banishment or exile'" ( id., at 1486 [citation omitted]), the Padilla Court observed that deportation or removal is now practically automatic for a broad class of noncitizen offenders, making it difficult to divorce the deportation penalty from the conviction itself. ( Id. [citation omitted]). For these reasons, the Supreme Court found that categorizing deportation in terms of a collateral-versus-direct consequence distinction is "ill-suited to evaluating a Strickland claim concerning the specific risk of deportation," and "advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel." ( Id., at 1482). The Court held that under Strickland, "counsel must inform her client whether his plea carries a risk of deportation." ( Id., at 1486). The Padilla Court did not, however, expressly declare whether its decision is to be applied retroactively to cases on collateral review, which is the threshold question. ( Teague v. Lane, 489 US 288, 300).
III. DISCUSSION
A. Applicability of Padilla on Post-Conviction Review
In this case, the People had initially conceded the retroactive applicability of Padilla to cases such as this one, where there is no dispute that final direct appellate review of the case had been concluded at the time of the Supreme Court's ruling. (DANY July 21 letter, at 1). The People now advise that they have "adjusted" their position in light of developing case law subsequent to Padilla. Placing particular reliance on the thorough analysis of the court in People v. Kabre , 29 Misc 3d 307 (Crim. Ct. NY Co. 2010), the People now contend that the rule of Padilla is not applicable retroactively to cases on collateral review, and cannot aid defendant de Jesus.
In its July 21 letter, the prosecution stated that " Padilla did not create a new constitutional rule [but] simply applied the well-settled rule in Strickland . . . in the context of advising a defendant about immigration consequences surrounding a guilty plea [and] . . . can be applied retroactively to cases that arose prior to the Supreme Court ruling." (DANY July 21 letter, at 2). At that time, the People further maintained that Padilla claims "must be evaluated on a case-by-case basis, looking at the prevailing professional norms at the time of a defense counsel's representation." ( Id.).
At this writing, neither the United States Supreme Court nor any New York appellate court has expressly announced whether Padilla is to be applied retroactively in post-conviction proceedings after direct appeals have been exhausted. Courts of coordinate jurisdiction in this state which have considered the issue are not in agreement. I find the reasoning of those courts holding Padilla to be retroactively applicable on post-conviction review to be most persuasive ( see Paredes, Garcia, Ortega and Bennett, supra, note 5), and also find evidence that the Supreme Court has made it unmistakably clear that the decision is to be retroactively applied on both collateral and direct review.
Compare, People v. Paredes, 29 Misc 3d 1020(A), 2010WL 3769234, at *2-3 (Sup. Ct. NY Co. Sept. 21, 2010); People v. Garcia, 29 Misc 3d 756, 907 NYS2d 398, 404 (Sup. Ct. Kings Co. 2010); People v. Ortega, 29 Misc 3d 102(A), 2010 WL 3786254, at *2 (Crim. Ct. NY Co. Sept. 28, 2010); People v. Ramirez, 29 Misc 3d 1201(A), 2010 WL 3769208, at *5 (Crim. Ct. NY Co. Sept. 17, 2010) and People v. Bennett, supra, 28 Misc 3d at 580, all finding retroactive application, with People v. Sanchez, 29 Misc 3d 1222(A), 2010 WL4628024, at *5-6 (Sup. Ct. Queens Co. Nov. 10, 2010), and People v. Kabre, supra, 29 Misc 3d at 316-322 (regarding misdemeanor pleas), rejecting retroactive application.
Because Padilla fundamentally alters the federal constitutional landscape, the retroactivity principles developed by the Supreme Court and followed by the New York Court of Appeals must govern this court's analysis. ( People v. Eastman, 85 NY2d 265, 275; see Teague v. Lane, supra). When the Supreme Court establishes a new rule of constitutional law, it applies to all cases still pending on direct review. ( See Griffith v. Kentucky, 479 US 314, 328). Where a case has concluded its direct appeals and is being addressed on collateral review, new substantive constitutional rules will generally apply retroactively ( Bousley v. United States, 523 US 614), while new rules of constitutional criminal procedure in most instances will not ( Teague v. Lane, supra, 489 US at 310]). The threshold issue, therefore, in determining whether a decision involving a new application of a rule of constitutional criminal procedure should be applied retroactively to cases on collateral review is whether the decision announced a new rule.
Although the Supreme Court has confirmed that its ruling in Teague v. Lane was merely an interpretation of the federal habeas corpus statute, binding only on federal courts applying federal statutory law, and did not establish any constitutional obligation on state courts ( Danforth v. Minnesota, 552 US 264, 278-79 [2008]); see People v. Watson, 14 Misc 3d 942, 958 [NY Co. Sup. Ct. 2007][so predicting]), New York has chosen to follow Teague's retroactivity analysis. ( See People v. Eastman, supra).
The Teague Court, adopting a formulation earlier articulated by Justice Harlan, restricted the retroactive application of new rules of constitutional criminalprocedure on collateral review to two limited circumstances. The first exception to the general rule of non-retroactivity occurs where the new rule "places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe,'" ( Teague, supra, 489 USat 311, quoting Mackey v. United States, 401 US 667, 692[Harlan, J., concurring in part and dissenting in part]).The second exception concerns" those procedures that . . .are "implicit in the concept of ordered liberty"'" and constitute "watershed rules of criminal procedure." ( Teague,, supra, 489 US at 311, quoting Mackey v. United States, 401 US at 693 [Harlan, J., concurring in part and dissenting inpart][internal citation omitted]; see Eastman, supra, 85NY2d at 275).
Here, the resolution of this threshold issue will determine the larger issue of retroactivity, making any analysis of the Teague-Eastman exceptions unnecessary.
[A] case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government. . . . To put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time defendant's conviction became final.
( Teague v. Lane, supra, 489 US at 301 [citations omitted] [emphasis in original]).
The Court subsequently explained:
The explicit overruling of an earlier holding no doubt creates a new rule; it is more difficult . . . to determine whether we announce a new rule when a decision extends the reasoning of our prior cases.
( Saffle v. Parks, 494 US 484, 488). The mere existence of conflicting authority does not necessarily make a rule new, however. ( Wright v. West, 505 US 277, 304[citing Stringer v. Black, 503 US 222, 237 (1992)] [O'Connor, J., concurring]).
A decision does not announce a new rule, and thus may be given retroactive effect, when it "simply applie[s] a well-established constitutional principle to govern a case which is closely analogous to those which have been previously considered in the prior case law." ( Williams v. Taylor, 529 US 362, 380-381). Restated, "when a Supreme Court decision applies a well-established constitutional principle to a new circumstance, it is considered to be an application of an old' rule, and is always retroactive." ( People v. Eastman, supra, 85 NY2d at 275 [citing Yates v. Aiken, 484 US 211, 216]).
Finally, as explained by Justice Kennedy:
If the rule in question is one which of necessity requires a case-by-case examination of the evidence, then we can tolerate a number of specific applications without saying that those applications themselves create a new rule.
( Wright v. West, supra, 505 US at 308 [Kennedy, J., concurring]).
In Williams, the Supreme Court held that applying Strickland to a different set of facts did not create a new constitutional rule. ( Williams v. Taylor, supra, 529 US at 391). The Williams Court reasoned that the application of a "well-established constitutional principle," i.e., the two-part standard announced in Strickland for assessing violations of the Sixth Amendment right to the effective assistance of counsel, to a case presenting a divergent factual scenario does not create a new rule, as "it can hardly be said that recognizing the right to effective counsel breaks new ground or imposes a new obligation on the States." ( Id.). As the Williams Court acknowledged, applying Strickland's ineffective assistance of counsel analysis necessarily requires a fact-specific review. ( Williams v. Taylor, supra, 529 US at 391 [quoting Justice Kennedy's statement in Wright set forth above]). As Justice Kennedy explained in Wright, in the case of "a rule designed for the specific purpose of evaluating a myriad of factual contexts, it will be the infrequent case that yields a result so novel that it forges a new rule, one not dictated by precedent." ( Wright v. West, supra, 505 US at 309).
Application of these principles here powerfully suggests that Padilla should not be deemed to announce a new rule. Although it may be credibly argued that much of the case law extant prior to the decision reached a contrary conclusion, the Supreme Court had previously concluded that non-citizen defendants contemplating plea agreements "are acutely aware of the immigration consequences of their convictions;" that professional standards required that any defendant facing deportation as a result of a conviction should be fully advised by counsel of that consequence; and that "competent defense counsel, following the advice of numerous practice guides," would advise the client of the availability of discretionary cancellation of removal in the years prior to 1996 when it was available. ( Immigration and Naturalization Service v. St. Cyr, supra, 533 US at 322 nn. 48 [citing 3 ABA Standards for Criminal Justice 14-3.2 Comment, 75 (2d ed. 1982], 50). Thus, Padilla should not be viewed as breaking new ground or imposing a new obligation on the government, and the existence of conflicting case law is not determinative. ( Wright v. West, supra, 505 US at 304).
Williams makes clear that recognition of the right to effective assistance of counsel in a novel factual context does not spawn a new constitutional rule. Rather, such rulings constitute application of an "old" rule. ( See Eastman, supra, 85 NY2d at 275). These considerations strongly suggest that Padilla did not announce a new rule under Teague-Eastman, and should be therefore be applied retroactively, notwithstanding the appealing arguments that existing precedent did not recognize the right announced in the Padilla decision, much less dictate its result ( see Kabre, supra).
Moreover, even if Padilla did announce a new rule, its terms must apply retroactively on collateral review, pursuant to Teague. In Teague, the Court observed that its well-settled jurisprudence in the direct review context provided that any newly announced constitutional rule must be applied both to the defendant in the case announcing the rule, to avoid the issuance of constitutional adjudications which would constitute mere advisory opinions, and to all others similarly situated, to avoid the unfairness of according disparate treatment to similarly situated defendants. ( Teague, at 315 ["such inequitable treatment hardly comports with the ideal of "administration of justice with an even hand"'"], citing Hankerson v. North Carolina, 432 US 233, 247[Powell, J., concurring][quoting Desist v. United States, 394 US 244, 255 (Douglas, J., dissenting)]). To avoid these problems of rendering advisory constitutional opinions and creating inequities resulting from the uneven application of constitutional rules, the Teague Court appended to its announcement of its new retroactivity analysis the proviso that in its exercise of its collateral review powers, it would "simply refuse to announce a new rule in a given case unless the rule would be applied retroactively to the defendant in the case and to all others similarly situated." ( Teague, at 316). "[H]abeas corpus cannot be used as a vehicle to create new constitutional rules of criminal procedure unless those rules would be applied retroactively to all defendants on collateral review through one of the two exceptions we have articulated." ( Id.).
Applying this standard to the issue then before it, namely, whether a petit jury must reflect a fair cross-section of the community, the Court concluded that were it to announce such a rule on collateral review, it would not meet either of its two exceptions enabling retroactive application. For that reason, the Court declined to reach the merits of the issue. ( Id.).
Thus, Teague establishes that where the Court does announce a "new" rule of constitutional criminal procedure in the exercise of its collateral review powers, it will be doing so because the new rule fits within one of the two Teague exceptions, and, therefore, applies retroactively to all similarly situated cases. Since Teague requires that all new rules announced on federal collateral review must satisfy at least one of the two Teague exceptions, and would be retroactive, the rule of Padilla, even if new, would, of necessity, apply retroactively to all similarly situated cases on collateral review.
In this court's view, however, there is even more compelling evidence that the Supreme Court intended that Padilla be applied retroactively to cases on collateral review. This evidence is found in the fact that the Supreme Court has applied its view of Strickland announced in Padilla retroactively to cases on collateral review. First and foremost among these cases, of course, is Padilla itself, in which the Court granted certiorari to review the decision of the Supreme Court of Kentucky ( Padilla v. Commonwealth, 453 SW3d 482 [Ky. 2008]), which had denied post-conviction relief from a 2002 final judgment of conviction. Because the Padilla rule was announced in a case which came before the Supreme Court on collateral review, the Teague addendum requires that it be applied to all other similarly situated litigants.
Further, in its mention of the concern raised by the Solicitor General and amici curiae that granting relief to Padilla would jeopardize the finality of a multitude of convictions obtained through guilty pleas ( Padilla v. Kentucky, supra, 130 SCt. at 1484), the Court noted that it had faced a similar "floodgates" issue in Hill v. Lockhart, supra, but nevertheless applied the Strickland standard to a claim of ineffective assistance of counsel in connection with a guilty plea due to the failure to advise the defendant as to his parole eligibility. ( Id., [citing Hill v. Lockhart, supra, 474 US at 58]). The Padilla Court observed that "[a] flood did not follow in that decision's wake." ( Padilla v. Kentucky, supra, 130 SCt. at 1485). In addressing this issue, the Supreme Court clearly signaled its intention that the rule of Padilla apply retroactively in collateral review cases. If the court's intention had been otherwise, no such discussion would have been logical or necessary.
Similarly superfluous, if not incomprehensible, had the Padilla Court not intended its ruling to apply to cases pending on collateral review, would have been the Court's discussion of the infrequency of challenges to guilty pleas, in contrast to convictions after trial, notwithstanding the fact that criminal cases are resolved by pleas in 95% of all cases. ( Padilla, supra, at 1485-86 [footnotes and citations omitted]). The Court explained this phenomenon by expressly referencing its contemplation that the challenges would not come on direct review:
The nature of relief secured by a successful collateral challenge to a guilty plea-an opportunity to withdraw the plea and proceed to trial-imposes its own significant limiting principal: Those who collaterally attack their guilty pleas lose the benefit of the bargain obtained as a result of the plea. Thus, a different calculus informs whether it is wise to challenge a guilty plea in a habeas proceeding because, ultimately, the challenge may result in a less favorable outcome for the defendant, whereas a collateral challenge to a conviction obtained after a jury trial has no similar downside potential.
( Id.).
Removing any residual doubt that its intention was that Padilla be applied retroactively to cases on collateral review, the Supreme Court, within a week of issuing Padilla, applied its ruling on collateral review of a case which was final on direct review at the time the court issued its decision in Padilla. In Santos-Sanchez v. United States, — US —, 130 SCt. 2340 (2010), a legal permanent resident petitioned for a writ of coram nobis to vacate his misdemeanor conviction because it had triggered removal proceedings against him. He had argued that his counsel was ineffective for having misadvised him as to the deportation consequences of his guilty plea. The Court of Appeals for the Fifth Circuit had agreed that his claim could only be raised in that collateral civil proceeding, as his direct appeals had been exhausted and he was no longer in custody, precluding habeas corpus relief. The Fifth Circuit had denied the petition concluding that deportation "was a collateral consequence of the criminal process" ( Santos-Sanchez v. United States, 548 F3d 327, 334 [5th Cir. 2008]), albeit a "harsh" one. ( Id., at 336 n. 5). Rejecting the petitioner's claim that the changes in immigration law visited by IIRIRA and AEDPA had so altered the nature of deportation that it should be considered a direct consequence of a guilty plea, the Court found no deficiency in counsel's performance and denied relief. ( Id., at 336-37). The Supreme Court, after granting certiorari, vacated the judgment and remanded the case to the Fifth Circuit "for further consideration in light of Padilla v. Kentucky. . . ." ( Santos-Sanchez v. United States, supra, 130 SCt. at 2340), demonstrating by its own example that Padilla was to be applied retroactively to cases on collateral review.
This court respectfully rejects the reasoning of People v. Kabre, supra, upon which the People rely. At the outset, beyond the points already discussed, it is clear from an examination of the Teague addendum that retroactive application of Padilla is compelled by Teague, to the extent Padilla could be said to announce a new rule, and does not, as the Kabre court maintains, amount to an abrogation of the Court's Teague jurisprudence ( see Kabre, supra, 29 Misc 3d at 319-20).
Further, Kabre's reliance on the failure of the Supreme Court, in its jurisprudence subsequent to Gideon v. Wainwright, 372 US 335 (1963), to find any "watershed" rules of constitutional criminal procedure sufficient to invoke the second Teague exception and require retroactive application as support for denying such effect here is misplaced. ( See Kabre, 29 Misc 3d at 320-21 [citing the Supreme Court's post- Teague decisions in Whorton v. Bockting, 549 US 406, 418[as to Crawford v. Washington, 541 US 36 (2004)]; Schriro v. Summerlin, 542 US 348[as to Ring v. Arizona, 536 US 584 (2002)]; and Beard v. Banks, 542 US 406[as to Mills v. Maryland, 486 US 367 (1988)]). Each of the cases cited as examples by the Kabre court involved rules which the Court had created on direct appeal, not on collateral review. Unlike Padilla, therefore, these rulings did not trigger Teague's collateral review addendum, that when the Court announced a new rule on collateral review, it would do so only where the rule satisfied one of the two Teague exceptions to the rule against retroactive application, such that the new principle would apply to all defendants similarly situated to the one in whose case the rule had been announced. Whorton, Schriro and Beard are, therefore, inapposite to this discussion.
The Padilla Court's reference to "a similar floodgates' concern" in Hill ( Padilla v. Kentucky, supra, 130 SCt. at 1484-1485 n. 12) with respect to protecting the finality of guilty plea convictions was occasioned by the fact that Hill, like Padilla, was a case in which the Supreme Court decided an issue of constitutional criminal procedure on collateral review.
In sum, irrespective of whether the Supreme Court, in its application of the Strickland standard in Padilla, a collateral review case, merely applied the well-established constitutional rule of Strickland to a new factual scenario, or announced an important new rule of constitutional criminal procedure that meets at least one of the two Teague exceptions, Padilla clearly applies retroactively to cases on post-conviction review. Therefore, in accordance with Padilla, this court will apply the two-pronged Strickland standard to defendant's claim of ineffective assistance of counsel in connection with her guilty plea.
B. Objective Standard of Reasonableness
To evaluate defendant's Sixth Amendment claim under Padilla and Strickland, this court must determine whether her counsel's performance "fell below an objective standard of reasonableness" as measured by reference to "prevailing professional norms." ( Padilla v. Kentucky, supra, 130 SCt. at 1482, citing Strickland v. Washington, supra, 466 US at 688). The Court in Padilla noted it had "long . . . recognized [p]revailing norms of practice as reflected in American Bar Association standards and the like . . . [as] guides to determining what is reasonable. . . .'" ( Padilla, supra, at 1482 [citations omitted]), and cited a litany of professional standards, treatises, guidelines and other authorities dating from 1993 through 2009 as evidence that "[t]he weight of prevailing professional norms supports the view that counsel must advise her client regarding the risk of deportation." ( Id., at 1482-83).
While Strickland's first prong requires the reviewing court to "judge the reasonableness of counsel's challenged conduct as of the time of counsel's conduct," Strickland, supra 466 US at 690), at the time of defendant's plea, numerous authorities recognized that professional standards required defense lawyers to inform their non-citizen criminal clients of possible deportation consequences before entering guilty pleas. ( See, e.g., 3 Bender's Criminal Defense Techniques, § 60A.01 [1985]; 3 ABA Standards for Criminal Justice 14-3.2 Comment, 75 [2d ed. 1982]; James E. Bond, Plea Bargaining Guilty Pleas § 3.46[1982]). In addition, sources listed by the Padilla Court included: G. Herman, Plea Bargaining § 3.03, pp. 20-21 (1997); the National Legal Aid and Defender Assn., Performance Guidelines for Criminal Representation § 6.2 (1995); and ABA Standards for Criminal Justice, Prosecution Function and Defense Function 4-5.1(a), p. 197 (3d ed. 1993), each of which had been published by the time of the defendant's plea in this case. ( See Padilla v. Kentucky, supra at 1482). As noted in People v. Bennett, supra, 28 Misc 3d at 582, local bar publications were also addressing the issue during this time period. ( Id., citing Muldoon, Collateral Effects of a Criminal Conviction, 70 NY State Bar J. 26 [July/August 1998]; Bendik and Cardoso, Immigration Law Considerations for the Criminal Defense Attorney, 61 NY State Bar J. 33 [July 1989]).
The Supreme Court pointedly observed that because Padilla's state court conviction was for a controlled substance offense under section 237(a)(2)(B)(i) of the Immigration and Nationality Act ( 8 USC § 1227[a][2][B][i]), the deportation consequence of his 2002 conviction was "clear and explicit," and that his attorney should have informed him that his removal was presumptively mandatory. ( Padilla v. Kentucky, supra, 130 SCt. at 1483).
In the instant case, the People correctly observe that the court must determine the prevailing professional norms as of the time of counsel's representation of the client. (DANY July 21 letter, at 2; see Padilla v. Kentucky, supra, 130 SCt. at 1482; Strickland v. Washington, supra, 466 US at 688). The People maintain, however, that because the law of New York in 1999 as established by the Court of Appeals' decision in People v. Ford, 86 NY2d 397 (1995), held that because deportation is a collateral consequence of a plea, the failure of defense counsel to advise a defendant of the deportation result of a guilty plea did not constitute ineffective assistance of counsel and did not violate Sixth Amendment standards, the "prevailing professional norm" at the time of defendant's plea was satisfied, notwithstanding her attorney's failure to offer immigration advice. This argument fails for three reasons.
First, looking at defendant's case on its own facts, the changes in the immigration law mentioned by the Supreme Court in Padilla and the mandatory deportation consequence of a conviction for a controlled substance offense pertain equally in this case. Moreover, de Jesus stands convicted not only of a controlled substance offense under 8 USC § 1227[a][2][B][i], but also of narcotics trafficking, an aggravated felony mandating removal ( see 8 USC § 1227[a][2][A] [iii]). Controlled substance trafficking has been designated an aggravated felony since 1988. (ABA Commission on Immigration Judicial Immigration Education Project, A Judge's Guide to Immigration Law in Criminal Proceedings, at 4-30 [citing Anti-Abuse Drug Act, Pub.L. No. 100-690, § 7342, 102 Stat. 4181 (Nov. 18, 1988)]). Defendant's situation, under immigration law which was well-settled in 1999, is, therefore, even worse than that of Padilla.
A non-citizen, even one who is a legal permanent resident, such as defendant, who is convicted of drug trafficking is guilty of an aggravated felony, rendering her deportable and ineligible for almost all forms of discretionary relief from removal. (See 8 USC §§ 1227[a][2][A][iii]; 1229b[a]; 1182[h]).
Second, the Supreme Court in Padilla was aware that the law in Kentucky at the time of the defendant's plea did not deem counsel's performance there to have been ineffective. The fact that Ford was the law in New York in 1999 is of no more consequence in this case than the Commonwealth of Kentucky law was in Padilla with respect to prevailing norms: both have been abrogated by Padilla.
The Supreme Court noted the contrary view of the Kentucky courts, and that it was shared by other federal and state courts, as well. ( Padilla v. Kentucky, supra, 130 SCt. at 1481). If the People's view of prevailing norms were correct, the Supreme Court would have reached the opposite conclusion in Padilla.
And third, the Supreme Court in Padilla expressly found that "[f]or at least the past 15 years, professional norms have generally imposed an obligation on counsel to provide advice on the deportation consequences of a client's plea." ( Padilla, 130 SCt. at 1485).
Subsequent to Padilla, some courts have held that a judge's warning that entry of a guilty plea may result in deportation consequences is sufficient to cure defense counsel's failure to do so [ see, e.g., People v. Contant, 77 AD3d 967, 910 NYS2d 482, 485 [2d Dept. 2010], [citing Zhang v. United States, 506 F3d 162, 169 (2d Cir. 2007), in holding that court warning served to put the defendant on notice that his guilty plea had potential immigration consequences]; United States v. Bhindar, ___ FSupp3d ___, 2010 WL2633858 [SDNY June 30, 2010], at *6 [magistrate's "clear instruction" sufficient to put the defendant on notice that he would be removed if he pleaded guilty]). The issue whether a judge's warning of possible immigration consequences has a curative effect on the failure of defense counsel to render such advice has no bearing upon whether counsel's conduct failed to meet the objective standards of reasonableness prong of Strickland, however. Rather, the effect of such a warning is germane only to the prejudice prong of Strickland.
While there is clearly a tension between the professional standards espoused by the authorities cited by the Supreme Court, which required deportation advice, and the then-prevailing legal standards as set forth in the decisional law of Kentucky, New York and numerous other jurisdictions, the prevailing professional norms extant at the time of defendant's plea, as recognized by Padilla ( Padilla v. Kentucky, supra, 130 SCt. at 1482-1483), required that she be accurately advised of the removal consequences of her conviction. Accordingly, the defendant's allegations that her trial counsel failed to advise her that her conviction would subject her to mandatory deportation are sufficient to raise a factual issue on the question of whether counsel's performance fell below an objective standard of reasonableness according to prevailing professional norms. A hearing is necessary to determine whether the first Strickland prong is satisfied. (CPL § 440.30).
C. Demonstration of Prejudice
Defendant contends that her former defense counsel failed to advise her that her plea of guilty to a drug offense would make her subject to automatic deportation pursuant to 8 USC § 1227(a)(2)(B)(i) (requiring removal of anyone convicted of "a controlled substance offense [as defined in 21 USC § 802], other than a single offense involving possession for one's own use of 30 grams or less of marijuana"). She maintains that but for counsel's failure to so advise her, she would not have pleaded guilty.
In support of her claim, defendant states that neither on the day of her plea colloquy nor on any prior occasion did counsel discuss with her the immigration consequences of her conviction, and that given her circumstances, had she known the plea would result in her automatic deportation, she would have insisted that other alternatives, including trial, be explored, even at the risk of incarceration. (Affidavit of Gleni Castillo de Jesus, sworn May 19, 2010, at 3-4). Defendant states that she has lived in the United States since 1993; has been happily married since 1994 to a United States citizen; that she became a lawful permanent resident in 1996; that her husband helped her children become United States citizens; and that she has been able to earn far more from her work in this country than she would working in the Dominican Republic, where she would be unable to support herself or her family, should she be deported. She argues that her family ties and employment considerations would have prompted her to reject any plea involving deportation, had she been accurately advised.
In further support of her claim of prejudice, defendant maintains that her plea counsel did not inform her of the strengths or weaknesses of the People's case, in which she alleges credibility problems existed as to the People's sole witness, the observing police officer, who had proffered conflicting versions of the roles of the participants in the incident in the criminal court complaint and in the district attorney's write-up of the his post-arrest interview. (Kratka Affirm., Exh. A, at 1 [Criminal Court complaint]; Exh. F [Tr., May 4, 1999], at 4-5). Additionally, defendant claims that the court's statement to defendant at the time of her plea concerning the possibility of her deportation as a result of her conviction did not mitigate the prejudice resulting from her counsel's silence, since she did not fully comprehend the court's warning, and in any event, assumed that she could follow counsel's advice to take the guilty plea. Finally, defendant contends that she would have proceeded to trial rather than face deportation because she was actually innocent of the charges.
Defendant alleges that she answered "yes" to the court's question whether she understood the warning because her counsel had instructed her to answer all of the court's questions in the affirmative, and because it was the first time anyone had mentioned the possible deportation consequences of her plea. Since 1995, superior criminal courts in New York have been required by CPL § 220.50(7) to issue warnings to any defendant pleading guilty to a felony offense that "if the defendant is not a citizen of the United States, the defendant's plea of guilty and the court's acceptance thereof may result in the defendant's deportation. . . ." The sufficiency of the court's warning, in view of its departure from both the text of the statute and the provisions of federal law, and defendant's claimed failure to comprehend it, are germane to defendant's prejudice claim, as they relate to the defendant's access to information at the time of her plea. ( People v. McDonald, supra, 1 NY3d at 115).
In response, the People challenge the credibility of defendant's claim, contending that even had defendant received more complete advice from her counsel, she would not have chosen to go to trial, given the strength of the People's case. They further argue that any discrepancy in the officer's testimony was de minimis, and would not have affected the officer's core testimony that he had observed defendant involved in an exchange involving a tin of cocaine. The People further challenge the credibility of defendant's current assertions of prejudice, questioning her claim that she would have abjured a highly favorable plea bargain and risked exposure to a twenty-five-year prison sentence for the slim chance of being able to avoid deportation through acquittal, and note defendant's failure to advance these claims in the eleven years since her conviction.
In examining a prejudice claim, "[t]he sufficiency of defendant's factual allegations as to prejudice should be evaluated with reference to the face of the pleadings, the context of the motion and defendant's access to information." ( People v. McDonald, supra, 1 NY3d at 115 [citing People v. Mendoza, 82 NY2d 415, 426). Here, defendant has provided sworn factual allegations supporting her claim of prejudice. Her motion alleges a lack of information as to the strength of the prosecution's case and as to the consequences of the alternatives available to her. In essence, she says she would not have pleaded guilty, but for counsel's error. The prosecution essentially contends her present claims are fabricated.
Accordingly, a hearing is also necessary under Strickland's second prong on the issue whether defendant can establish a reasonable probability that but for a failure by counsel to advise her as to the automatic deportation consequences of her guilty plea, she would not have pleaded guilty and would have insisted on going to trial. ( People v. Williams , 72 AD3d 1347 , 1348 [3d Dept. 2010); People v. Marshall , 66 AD3d 1115 , 1116 [3d Dept. 2009]; People v. McKenzie , 4 AD3d 437 [2d Dept. 2004]).
IV. CONCLUSION
For the reasons stated in this opinion, and as reflected in this court's order entered December 10, 2010, defendant's motion to vacate the judgment of conviction pursuant to CPL § 440.10 is granted, to the extent that this court finds that the rule of Padilla v. Kentucky is applicable to this case and that a hearing will be held on February 2, 2011 to determine whether defendant's claims satisfy the two-part standard of Strickland v. Washington.
The foregoing constitutes the decision of this court.