Opinion
2002KN012360.
Decided September 13, 2010.
Defendant was represented by Andrew L. Friedman, Esq., New York, NY.
The People were represented by District Attorney Charles J. Hynes, by Assistant District Attorney Melissa J. Feldman, Brooklyn NY.
An accusatory instrument was filed with the court on February 27, 2002, charging defendant with two counts of Sexual Misconduct (Penal Law § 130.20), two counts of Sexual Abuse in the Third Degree (Penal Law § 130.55), and one count of Endangering the Welfare of a Child (Penal Law § 260.10). On June 25, 2002, defendant pleaded guilty to one count of Sexual Misconduct before the Honorable Daniel Chun. On September 9, 2002, Judge Chun sentenced defendant to six years of probation. In 2006, defendant moved for an order vacating his conviction pursuant to CPL 440.10, alleging that his attorney (trial counsel) misinformed him of the immigration consequences his plea would have on his status as a resident alien. In a decision dated July 31, 2006, the Honorable Matthew A. Sciarrino denied defendant's motion to vacate.
At the time of the alleged criminal transactions, Sexual Misconduct (Penal Law § 130.20 [2]) was defined as when a person "engages in deviate sexual intercourse with another person without the latter's consent." In 2003, the statute was amended, substituting "oral sexual conduct or anal sexual conduct" for "deviate sexual intercourse."
In a motion filed on June 9, 2010, defendant moves for an order vacating his conviction pursuant to CPL 440.10, for the same reason considered by the Honorable Matthew A. Sciarrino, alleging that his trial counsel misinformed him of the immigration consequences his plea would have on his status as a resident alien, but now with deference to the recently decided case of Padilla v Kentucky ( 559 US ___, 130 SCt 1473). The People oppose the motion in a response dated August 27, 2010.
Facts
The accusatory instrument alleges that on or about October 18, 2001, defendant placed his mouth on complainant's vagina; and that on December 22, 2001, defendant placed his mouth on complainant's breast and vagina, and inserted his penis into her vagina. The accusatory instrument also alleges that complainant was 15 years old when defendant committed those crimes. Defendant was represented by his retained trial counsel throughout the proceedings, including when defendant pleaded guilty on June 25, 2002, and sentenced on September 9, 2002. No notice of appeal was ever filed.
Inexplicably, defendant was not charged with Sexual Misconduct under subd. 1 of Penal Law § 130.20, which prohibits "sexual intercourse with another person without such person's consent."
A person is deemed incapable of consenting to a sexual act prohibited by Penal Law article 130 when he or she is less than 17 years old (Penal Law § 130.05 [3][a]).
In an affidavit submitted to the court with the instant motion, defendant states:
In essence, I pled guilty to Sexual Misconduct under the mistaken but justifiable belief that I could remain in the bosom of my family if I abstained from traveling outside of the country. However, I did not get what I bargained for and my constitutional due process guarantees were unnecessarily trampled via the incompetence and ineffective assistance of my criminal attorney. . . .
He informed me that my plea of guilty would only have negative immigration problems if I elected to depart and reenter the United States but that I was immune from immigration problems if I remained in the United States.
Defense counsel now asserts that defendant "currently has a final order of deportation lodged against him." The critical portion of the plea proceeding is quoted below. At the time defendant pleaded guilty on June 25, 2002, after the court mentioned that there would be a final order of protection, the court and defendant's retained trial counsel stated:
Defendant has not submitted with the instant motion a copy of the final order of deportation, or copies of any paper work connected to the federal deportation proceedings.
MR. SHEEHAN: Yes. Also, for the record, I have spoken with Mr. Mills at length about this. I know he has spoken to his wife and friends. And I have advised him because he is not a U.S. citizen, if he enters the country after traveling abroad, he will be barred from reentry and INS can start INS proceedings against him whether he leaves or not, which is unlikely at this time. I have advised him, in my legal opinion, if there were a conviction, and I am ready to try the case now, and we have a defense, in my legal opinion it can be reversed on speedy trial grounds. Knowing that is my opinion, Mr. Mills would like to enter the plea to resolve the case now.
THE COURT: Okay, I do not know at all whether or not if anything counsel has said is correct or true or will happen or will not happen.Discussion
Any alien who has been convicted of an "aggravated felony" at any time after he has been admitted to the United States is deportable ( 8 USC § 1227(a)(2)(A)(iii); Ganzi v Holder, 2010 WL 1854049 [2nd Cir 2010]). Although Sexual Misconduct (NY Penal Law § 130.20 subds 1 and 2) is a class A misdemeanor, for immigration removal purposes it is an "aggravated felony" if, as in this case, the conviction is based on an information that specifically alleges that the victim was deemed incapable of consent because she was less than 17 years of age at the time of the crime ( 8 USC § 1101 (a) (43); see Ganzi v Holder, 2010 WL 1854049 [2nd Cir 2010]); see also Bacchus v Ashcroft, 78 Fed. Appx. 779, 2003 WL 22440385 [2nd Cir 2003]).
The federal standard of ineffective assistance of counsel is set forth in Strickland v Washington ( 466 US 668). Under the two-prong analysis of Strickland, the court first determines whether counsel's performance was deficient, and second, whether defendant suffered actual prejudice as a result of counsel's deficiency.
When the Honorable Matthew A. Sciarrino denied defendant's first motion to vacate on July 31, 2006, the court applied law set forth in Strickland and People v McDonald ( 1 NY3d 109 ). In McDonald, the court held that although immigration consequences of a guilty plea were collateral and not required to be included in counsel's advice to a defendant even though he is not a citizen of the United States, actual misadvice by counsel could constitute ineffective assistance of counsel and require the court to vacate the conviction ( id., citing Strickland v Washington, 466 US 668).
Almost four years after defendant's first motion to vacate was decided, the Supreme Court of the United States decided Padilla v Kentucky ( 559 US ___, 130 S Ct 1473), which to some extent modified the holding in McDonald. Adhering to their standard of ineffective assistance of counsel in Strickland v Washington ( 466 US 668), Padilla held that ineffective assistance of counsel could result not only from defense counsel's misadvice, but also from defense counsel's failure to advise his client of the immigration consequences of a guilty plea.
Both Padilla and McDonald involve alleged misrepresentations of immigration law. However, any modification of McDonald by Padilla does not affect the instant case. In applying the first prong of Strickland, in denying defendant's first motion to vacate his conviction, Judge Sciarrino noted in his July 31, 2006 decision:
The defendant's reliance on McDonald ( supra) is misplaced. In that case, counsel acknowledged that he had incorrectly advised defendant that his guilty plea would not result in deportation because of the Defendant's lengthy residence in the United States and the fact [ sic] his three children were born in the United States. Such a definitive denial of collateral consequences is not presented in the instant matter. The court does not construe counsel's remarks to have been an affirmative misrepresentation [that] falls below an objective standard of reasonableness [italics and brackets in original; citation and internal quotation marks omitted].
Because the defendant has not carried his burden of establishing that his former counsel's performance was deficient, this court cannot reach the question of whether he suffered prejudice from that performance.
CPL 440.10 (3)(b) provides that the court may deny a motion to vacate a judgment when the "ground or issue raised upon the motion was previously determined on the merits upon a prior motion or proceeding in a court of this state . . . unless since the time of such determination there has been a retroactively effective change in the law controlling such issue." In a decision dated July 31, 2006, this defendant's prior motion to vacate judgement was denied because the court did not construe trial counsel's remarks as an affirmative misrepresentation that falls below an objective standard of reasonableness. The issue of whether defendant's retained trial counsel misrepresented the law was decided when the court denied defendant's first CPL article 440 motion, and that alone is reason for denying defendant's instant motion unless there has been a retroactively effective change in the law controlling such issue since then ( see CPL 440.10 (3)(b)).
With less than six months since Padilla was decided by the Supreme Court of the United States, this court has not been able to find any New York appellate authority as to whether Padilla is to be applied retroactively. In his 2006 decision, Judge Sciarrino found that defendant's retained trial counsel was not ineffective. In fact, in Padilla ( 130 S Ct at 1486), the Court stated, "we now hold that counsel must inform her client whether his plea carries a risk of deportation." A review of the transcript of the plea proceedings indicates that defendant in the instant case was informed of the risk of deportation. Furthermore, Judge Sciarrino, already analyzed counsel's remarks in this case and decided that there was no "affirmative misrepresentation that falls below an objective standard of reasonableness" [internal quotation marks and brackets omitted]. Whether Padilla is applied retroactively or not applied retroactively, defendant's instant motion should be denied.
The courts in People v Garcia ( 2010 Slip Op 20349, 2010 WL 3359548 [Sup Ct, Kings 2010], and People v Bennett ( 23 Misc 3d 575 [Crim Ct, Bronx 2010]) held that Padilla must be applied retroactively. However, Padilla was not retroactively applied in People v Kabre ( 2010 NY Slip Op 20291, 2010 WL 2872930 [Crim Ct, NY County 2010]).
Even if, as defendant alleges, the consequence of the guilty plea concerning reentry into the United States was exaggerated by his trial counsel, it is irrelevant to this motion. The fact remains that at the time of his plea, trial counsel stated on the record, "I have advised him because he is not a U.S. citizen, if he enters the country after traveling abroad, he will be barred from reentry and INS can start INS proceedings against him whether he leaves or not, which is unlikely at this time" (emphasis added). This belies defense counsel's assertion in the instant motion, that defendant's trial counsel advised defendant that he "would not be Removable/Deportable if he refrained from traveling and remained in the United States."
The facts in defendant's case are similar to those in Zhang v US ( 506 F3d 162 [2nd Cir 2007]). When defendant Sean Zhang (Zhang) pleaded guilty, the prosecutor stated that Zhang "agrees he [is] subject to possible post sentence deportation." The magistrate judge told Zhang on the record that "it's not indicated as a consequence of your plea and the plea agreement but the government indicated that this felony conviction because of your immigration status could result in your deportation. Do you understand that?" Zhang answered, "Yes, I understand." ( Id. at 165 [internal quotation marks omitted].) Although Zhang pleaded guilty to what was apparently an aggravated felony resulting in automatic deportation, he explicitly reserved the right to contest such a finding.
The United States Court of Appeals considered whether "possible post sentence deportation," "could result" in deportation, and "may be deported" were accurate statements. The court held that the statements "served to put Zhang on notice that his guilty plea had potential immigration consequences, and provided an opportunity to pursue those consequences more fully with his attorney or with an immigration specialist" ( id. at 168).
More importantly, the United States Court of Appeals held in Zhang that "the statements were not a full elaboration of the immigration consequences of a guilty plea, but they were not misleading or prejudicial in any way" ( id. at 168 [emphasis added).
Conclusion
In the instant case, trial counsel's reservation, "which is unlikely at this time," was not a misstatement of the law at the time of defendant's plea of guilty. "Unlikely at this time" does not mean "never." Trial counsel's statement that INS proceedings could be commenced against defendant regardless of whether he traveled outside of the United States was accurate advice. The only reasonable interpretation of trial counsel's statement on the record is that while INS proceedings would not start on the day defendant pleaded guilty, they could be started at a later time.
Defendant's instant motion does not allege facts that were not, or could not be considered in his 2006 motion. Defendant has not submitted, nor does he allege that he attempted to secure an affidavit by trial counsel. Furthermore, defendant's affidavit submitted with his motion contradicts the transcript of the plea proceedings submitted by him.
In paragraph 6 of his affidavit, defendant mischaracterizes the trial court record by stating that trial counsel said on the record that defendant "would only encounter immigration problems upon reentry if I [defendant] decided to depart the United States but would be free of immigration problems if I [defendant] elected to refrain from traveling and remain in the United States" (emphasis and brackets added). It is quite clear that counsel did not use the word "only," as alleged by defendant, when discussing possible immigration consequences. Also, rather than accurately quoting the transcript of the plea proceedings which indicates that trial counsel said INS can start proceedings against defendant whether he or not he leaves the country, "which is unlikely at this time," defendant swears in his affidavit that trial counsel stated on the record that defendant's "future placement in Removal proceedings was unlikely'."
In paragraph 10 of his affidavit, defendant states that trial counsel "stated in open court that it was highly unlikely that I [defendant] would be placed in Removal proceedings. . ." (emphasis added). However, the copy of the transcript of the plea proceedings submitted by defendant indicates that although trial counsel used the term "unlikely at this time" at the plea proceedings, he did not use the term "highly unlikely."
If Padilla is not applied retroactively, defendant's motion to vacate must be denied because this court has determined that trial counsel did not misadvise defendant on deportation ( see also decision dated July 31, 2006 by Judge Sciarrino applying People v McDonald ( 1 NY3d 109 ).
If Padilla is applied retroactively, defendant's motion to vacate must be denied because defendant has failed to meet his burden of showing that trial counsel's performance was deficient as a matter of law whether either federal or state standards are applied.
Under New York law, a defendant's right to effective assistance of counsel will be satisfied "so long as the evidence, the law, and the circumstances of a particular case, viewed in totality, and as of the time of the representation, reveal that the attorney provided meaningful representation" ( People v Baldi, 54 NY2d 137, 147 [1981]; People v Benevento, 91 NY2d 708, 712 [1998]). In the case at hand, viewed in totality, and as of the time of representation, trial counsel provided meaningful representation.
Accordingly, it is hereby:
ORDERED, that defendant's motion is denied because he has not raised a ground or issue since a motion based on the same facts was previously determined in a decision dated July 31, 2006, by Judge Sciarrino, on the merits, including a determination that counsel's remarks were not an affirmative misrepresentation that falls below an objective standard of reasonableness; and since the time of such determination there has been no retroactively effective change in the law controlling such issue; and it is further,
ORDERED, that after considering Padilla v Kentucky ( 559 US ___, 130 SCt 1473) and Strickland v Washington ( 466 US 668), defendant's motion is denied because defendant has failed to meet his burden of showing that trial counsel's performance was deficient.
This opinion shall constitute the decision and order of the court.