Opinion
QN13956/90
02-10-2012
The People of the State of New York, v. Jose U. Llorente, Defendant.
Jose U. Lorente Defendant, pro se Hon. Richard A. Brown Queens County District Attorney Matthew Sweet, Esq. Of Counsel
Jose U. Lorente
Defendant, pro se
Hon. Richard A. Brown
Queens County District Attorney
Matthew Sweet, Esq.
Of Counsel
, J.
On the evening of November 13, 1990, the defendant and three of his associates were engaged in a business transaction on a busy street in Queens County. The business being conducted was the illegal sale of cocaine and the purported buyer was an undercover police officer. Arrested shortly after the sale by a police field team, the defendant was found to be in possession of ten dollars of pre-recorded buy money and two additional packets of cocaine. The defendant was charged with the crime of Criminal Sale of a Controlled Substance in the Third Degree (Penal Law §220.39(1)), a "B" felony which then carried a maximum indeterminate prison term of 8 -25 years. However, due to successful pre-trial plea negotiations undertaken by his attorney, Jose Gonzalez, Esq., the defendant, on February 15, 1991, was offered and then accepted a highly favorable plea bargain: the defendant pled guilty to the lesser included offense of Attempted Criminal Sale of a Controlled Substance in the Third Degree (Penal Law §110/220.39(1)) and was promised a jail sentence of only six months, together with five years of probation. On May 6, 1991, the defendant was sentenced (Thomas, J. at plea & sentencing) in accordance with the plea. Thereafter, a Violation of Probation was filed against the defendant by the N.Y.C. Dept. Of Probation; due to the defendant's subsequent non-appearance in court, a bench warrant was issued on July 16, 1993. On July 28, 1993, the defendant was returned on the warrant, and on September 24, 1993, the defendant pled guilty to the Violation of Probation. Justice Thomas revoked the defendant's probation and resentenced the defendant to a definite sentence of one year.
The defendant, a native and citizen of Colombia, was admitted to the United States at Miami, Florida, on or about December 28, 1984, as a lawful permanent resident. On November 12, 2009, the defendant was arrested by Immigration and Customs Enforcement Agents from the U.S. Department of Homeland Security, pursuant to Section 237 (a)(2)(A)(ii) of the Immigration and Nationality Act. It is alleged that, after admission to this country, the defendant has been convicted of two or more crimes involving moral turpitude not arising out of a single scheme of criminal misconduct. The defendant remains in federal custody awaiting removal proceedings, under Section 240 of the Immigration & Nationality Act.
The defendant has now moved, pro se, pursuant to Criminal Procedure Law §440.10(1)(h), for an order vacating the judgement of conviction, upon the ground that he received ineffective assistance of counsel at the time of his plea. More specifically, the defendant alleges that the failure of trial counsel to advise him of the possible immigration consequences of his guilty plea violated his Constitutional right to the effective assistance of counsel, thereby rendering his plea involuntary. The defendant further contends that had he been aware of the risk of deportation, he would not have pled guilty and would have proceeded to trial.
Although the defendant characterizes his motion as one to "vacate the sentence", it is apparent that he is seeking to vacate the judgement of conviction. A similar motion filed by the defendant and relating to an unrelated conviction is now pending before the Hon. Pauline A. Mullings in Part AP-N of this Court.
The People have submitted an affirmation in opposition.
Conclusions of Law
In seeking to overturn this nearly 21 year old conviction upon the ground of ineffectiveness of counsel, the defendant has primarily relied upon the United States Supreme Court's holding in Padilla v Kentucky, _U.S._, 130 S. Ct. 1473 (2010). In Padilla, the Supreme Court acknowledged that there will be "numerous situations in which the deportation consequences of a particular plea are unclear or uncertain." In addressing the duty of defense counsel, the Court held: "When the law is not succinct and straightforward . . . a criminal defense attorney need not do more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear . . . the duty to give correct advice is equally clear" (Padilla, supra, at 1483).
Despite the Supreme Court's holding in Padilla, the People argue that this Court should not consider its legal ramifications upon this defendant's application for collateral relief because, it is contended, Padilla should not be applied retroactively. To date, there have been multiple and differing opinions regarding retroactivity rendered at the trial court level within this State, but neither of the four Departments of the Appellate Division nor the Court of Appeals has reconciled the issue. However, the United States District Court for the Eastern District of New York, in Hamad v U.S., 2011 WL 1626530 (E.D. NY, 2011, Gleeson, J.), held, in a habeas relief proceeding, that "new constitutional rules of criminal procedure, such as that laid out by Padilla, are not deemed retroactive to cases on collateral review" (Hamad, supra, citing Schriro v Summerlin, 542 U.S. 348). Judge Gleeson, citing Teague v Lane, 489 U.S. 288, concluded that "a new rule is not retroactive unless it is such a watershed rule'" (see, Beard v Banks, 542 U.S. 406, 417-418) that it "alter(s) our understanding of the bedrock procedural elements essential to the fairness of a proceeding." Judge Gleeson noted that the only rule ever specifically determined to be retroactive by the Supreme Court was the "right to counsel", as established in Gideon v Wainwright, 372 U.S. 335. Similarly, in Rosales v Artus, 2011 WL 3845906 (E.D. NY, August 30, 2011), Judge Bianco held that "to the extent that Padilla set forth a newly recognized constitutional rule of criminal procedure, that rule should not be deemed retroactive to cases on collateral review" (citing Hamad). Finally, in Ellis v U.S., _F.Supp.2d_, 2011 WL 3664658 (E.D. NY, June 3, 2011), the Court held that the Padilla rule "only applies to a limited class of defendants - noncitizen defendants who face charges that carry with them immigration consequences . . . this rule is neither profound nor sweeping, nor does it have a fundamental impact on criminal proceedings generally. .. therefore, the rule announced in Padilla does not apply retroactively."
Although the Appellate Term for the 9th & 10th Judicial Districts ruled, in People v Nunez, 2009 - 1833 SCR, NYLJ 1202476735056 (Dec. 15, 2010), that Padilla was retoactive, this Court respects that holding but is not bound by it (Mears v Chrysler Financial Corp., 243 AD2d 270; People v Garcia, 21 Misc 2d 732).
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This Court agrees with the People's position and has so held in the past (see People v Silent. Ind. No.77/93, N.Y.L.J., 1202538361190, at *1(Sup. QU, Decided December 14, 2011) finding that "under controlling retroactivity principles, "this new rule or obligation to inform a client whether a plea of guilty subjects him to a risk of deportation should not be applied retroactively to cases on collateral review. The Court's holding is based upon the retroactivity principles set forth in Teague v Lane, 489 U.S. 288, as adopted by the Court of Appeals in People v Eastman, 85 NY2d 265, 275-276, which may be summarized as follows: "(A) case announces a new rule when it breaks new ground or imposes a new obligation on the States or Federal Government; [or,] [t]o put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final" (Eastman, supra, at 301). In New York, prior to Padilla no such obligation to inform had been imposed upon counsel (see, People v Ford, 86 NY2d 397, 403-404), nor was the Supreme Court's decision dictated by precedent.
Therefore, in determining this defendant's ineffectiveness of counsel claim this Court is not constrained to abide by the dictates of Padilla, as the defendant's conviction pre-dated the Padilla decision by some 19 years. However, assuming arguendo, that in the future Padilla will be held to be retroactive to matters on collateral review, the Court will apply the Federal effectiveness of counsel test (Strickland v Washington, 466 U.S. 669) and the New York State standard "of meaningful representation" (People v Benevento, 91 NY2d 708, People v Baldi, 54 NY2d 137). Under the two-prong Strickland test, a court must "first determine whether counsel's representation fell below an objective standard of reasonableness" [constitutional deficiency], and then "whether there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different" [prejudice of defense] (Padilla v Kentucky, supra, at 1482). Under Baldi, at p.147, the Court of Appeals held that counsel will be deemed effective "so long as the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of representation, reveal that the attorney provided meaningful representation."
Addressing the first prong of the Strickland test, the Court finds that the defendant failed to establish that counsel's representation fell below an objective standard of reasonableness. "Based upon the professional norms prevailing when defendant pled guilty" in 1991, defense counsel would not have been ineffective for failing to advise defendant of the immigration consequences of his guilty plea (People v Feliciano, 31 Misc 3d 128(A), 929 NYS2d 201 (App. Term, 1st Dept.); see People v Ford, 86 NY2d at 404-405; People v Perez, 29 Misc 3d 1228 (A)).
Moreover, beyond the self-serving statements contained in the defendant's moving papers, first made some 20 years after the conviction, there is nothing to suggest that Mr. Gonzalez did not, in fact, discuss immigration consequences with the defendant. The defendant has failed to provide an affirmation from his former counsel, nor does he allege that he ever tried to obtain one from him. Of even greater significance, albeit negative, is the unsupported statement made by the defendant on pg. 5, para. 19 of his affidavit in support of his motion, wherein he alleges: "With respect to the immigration consequences of the conviction, the defendant did notify his attorney (defense counsel) Jose Gonzalez, Esq. (18B), at the time of plea, that he was a lawful permanent resident. See copy of the Plea Transcript annexed hereto as Exhibit - C." However, a review of the 6 page certified transcript fails to reveal a single instance where the defendant in any manner notified Mr. Gonzalez or the Court, expressly or otherwise, about his permanent resident status in the United States.
Counsel for the defendant effectively negotiated an extremely good deal for the defendant, who was facing a "Draconian" sentence if convicted of either or both of the "B" felonies that he was charged with, under the former so-called "Rockefeller Drug Laws." The defendant's protestations, that had he known of the future potential immigration consequences upon conviction he would have gone to trial, ring hollow for several reasons. First, the evidence of defendant's guilt was overwhelming, as he was observed selling crack cocaine to an undercover officer and was immediately arrested, only to be found with pre-recorded buy money and additional drugs on his person. Second, he has been unable to present any colorable defenses that he could have raised to the charges. Third, had he gone to trial and been found guilty, the possibility of deportation was even greater. And fourth, the guidelines regarding deportation pre-1996 were considerably weaker, as evidenced (see, below) by the fact that removal proceedings were not instituted until 18 years after the subject conviction, and were then based upon different crimes.
The defendant's claims of innocence are completely belied by his sworn statements made during his plea allocution. When asked by the Court if it happened on November 13, 1990, the defendant replied "Yes." When asked where it happened, he answered, "On Junction and 41 Avenue." After stating that it happened "about 7 o'clock," the defendant confirmed that he and others attempted to sell a narcotic drug to someone. Lastly, with great specificity the defendant informed the Court that the drug he sold was known as "Bazooka," a derivative of cocaine.
Viewing the credible facts and circumstances surrounding counsel's representation of the defendant, in their totality and at the time of said representation, the Court finds that the defendant was provided with meaningful representation and the effective assistance of counsel under both the Federal and State standards.
Nevertheless, the Court will next address the defendant's failure to demonstrate actual prejudice under the second prong of the Strickland test. The Federal removal proceedings instituted by the U.S. Department of Homeland Security were initially predicated upon two wholly unrelated and subsequent convictions: Petit Larceny (Penal Law §155.25) - January 10, 1996, and Reckless Endangerment in the Second Degree (Penal Law §120.20) - February 9, 2004, only to be later amended to include this conviction, as well as three other unrelated and subsequent convictions: Criminal Possession of a Controlled Substance in the Seventh Degree (Penal Law §220.03) - January 6, 1994 and August 15, 1994, and Attempted Assault in the Third Degree (Penal Law §110/120.00(1)) - August 13, 2002.
Thus, the defendant is unable to state, with any degree of certitude, that his deportation would not result but for the conviction under this indictment.
Finally, the fact that the defendant was not advised by the Court at the time of his guilty plea that the conviction might result in his deportation, shall not be deemed to effect the voluntariness of the plea, the validity of the conviction, and it does not afford the defendant any rights in a subsequent proceeding relating to the defendant's deportation or exclusion (CPL §220.50(7)). A Court must only advise a defendant of "direct consequences" as a result of the plea (People v Harnett, 16 NY3d 200), and deportation has been found to be a "collateral" consequence (People v Ford, 86 NY2d 397).
Accordingly, the defendant's motion to vacate the judgement of conviction is denied.
The foregoing constitutes the Opinion and Decision of the Court.
Order signed herewith.
The Clerk is directed to forward copies of this Memorandum Decision and Order to the defendant and the District Attorney.
___________________________
ROBERT CHARLES KOHM
J.S.C.