Opinion
No. 2014–2768 W CR.
04-07-2017
The PEOPLE of the State of New York, Respondent, v. Abraham R. Alvarez PANTINO, Appellant.
Appeal, by permission, from an order of the City Court of Peekskill, Westchester County (Thomas R. Langan, J.), dated October 29, 2014. The order denied defendant's motion, pursuant to CPL 440.10, to vacate a judgment convicting him, upon his plea of guilty, of attempted offering a false instrument for filing in the first degree.
ORDERED that the order is reversed, on the law, and the matter is remitted to the City Court for a determination de novo, following a hearing, of defendant's motion to vacate the judgment of conviction.
Defendant, a native of El Salvador, has resided in the United States since 1991, and became a lawful permanent resident on January 29, 2009. He has been employed for more than 20 years. Defendant was charged with two counts of offering a false instrument for filing in the first degree, a class E felony ( Penal Law § 175.35 ). The accusatory instrument alleged that defendant had falsely indicated that he did not previously have a New York State driver's license.
On July 18, 1995, defendant was allegedly issued a New York State driver's license under the name Vicente A. Patino. Defendant listed his date of birth thereon as July 1, 1955. On August 29, 2005, the license was revoked after defendant pleaded guilty to charges of common-law driving while intoxicated ( Vehicle and Traffic Law § 1192[3] ) and endangering the welfare of a child ( Penal Law § 260.10[1] ), in the Justice Court of the Town of Cortlandt, Westchester County.
On January 8, 2008, defendant applied for a learner's permit, filing DMV Form MV–44, using the name Abraham R. Pantino Alvarez. Defendant obtained a learner's permit and subsequently obtained a driver's license.
On May 22, 2012, defendant applied to renew the 2008 driver's license at the Department of Motor Vehicles in the City of Peekskill. Using facial recognition software, the Department of Motor Vehicles detected that defendant was the person who had obtained a driver's license in 1995, which had been revoked in 2005. Thus, his answers on the 2008 and 2012 applications were allegedly false.
On September 17, 2012, the People offered defendant a plea to one count of attempted offering a false instrument for filing, a class A misdemeanor. Adjournments were granted at appearances on October 1, 2012 and October 22, 2012.
On November 19, 2012, defendant appeared in Peekskill City Court, with counsel, before Judge William L. Maher, assisted by a Spanish interpreter. Defendant agreed to plead guilty to one count of attempted offering a false instrument in the first degree ( Penal Law §§ 110.00, 175.35[1] ).
Defendant had no questions about the rights he was "giving up in entering a plea." During the plea allocution, defendant stated that his date of birth was July 1, 1958, that he was pleading guilty because he was guilty, and that he was doing so freely and voluntarily. Defendant had signed a misdemeanor conviction waiver of rights form. He agreed that the "form [had] been fully explained to" him by his attorney and that he understood everything in the form. The misdemeanor conviction waiver of rights form indicated, among other things, that if defendant was not a citizen of the United States, "this plea of guilty may result in [his] deportation and exclusion from the United States." The form also indicated that he had discussed the matter with his attorney and had had enough time to talk to his attorney and make this decision. He was satisfied with his attorney's representation. Defendant admitted on the record that, on May 22, 2012 at 9:05 a.m. in the City of Peekskill, Westchester County, New York, he had "committed the crime of attempting to offer a false instrument in the first degree when [he] attempted to file a document" with the Department of Motor Vehicles in the City of Peekskill. The court accepted the plea.
On April 22, 2013, defendant was sentenced, as promised, to three years' probation and a $500 fine. The court also imposed a $200 surcharge and a $50 DNA fee. On August 22, 2013, the United States Department of Homeland Security commenced removal proceedings against defendant, referred to as Abraham Romelio Pantino Alvarez, based on his conviction of attempted offering a false instrument for filing in the first degree.
On July 11, 2014, defendant moved to vacate his judgment of conviction pursuant to CPL 440.10(1)(h). In support of the motion, defendant's counsel alleged, among other things, that defendant did not read or speak English, and that he "did not intentionally respond to a question falsely." Before pleading guilty, defendant "asked his [former] criminal attorney if there were any negative immigration implications a guilty plea would carry." Defendant allegedly told his former attorney "how he had built a life for himself and his family, about his employment ... for the past 20 years, and the detriment any deportation proceeding would have on him and his family." Defendant's former attorney allegedly advised him that he would not be subject to any negative immigration consequences if he pleaded guilty to attempting to offer a false instrument for filing in the first degree, and that he would receive only three years' probation. Counsel alleged that defendant had relied on his former attorney's "misadvice when pleading guilty" because he had believed that such plea would not affect his status as a lawful permanent resident. However, the information defendant's former attorney gave him was incorrect, as the plea automatically placed defendant in jeopardy of removal because the crime in question is considered a removable offense for immigration purposes. Thus, the representation of the former attorney fell below the required standard.
Counsel alleged that the court did not properly advise defendant of any immigration consequences that could result from his guilty plea; that the former attorney did not review the misdemeanor conviction waiver of rights form with defendant; and that an interpreter was not present to translate the form. Thus, defendant had no idea what he was signing, but did so "because his [former] attorney advised him to sign and to respond in the affirmative when the Judge asked if he had knowingly signed the form."
In his supporting affidavit, defendant claimed that when he attempted to obtain a driver's license in 2012, he "was confused as to the questions on the application because" he did not speak or read English. He claimed that he "would have insisted on going to trial, or negotiated an immigration-harmless alternative," had he "known that deportation proceedings would commence as a result of [his] guilty plea, because [he] was innocent of the charges." His former attorney insisted that he take the plea "because it was the best deal with no risk of incarceration or deportation." His former attorney did not review the misdemeanor conviction waiver of rights form with him. No interpreter was present when he signed the form.
In an affirmation in opposition to the motion, the People, among other things, disputed defendant's claim that he does not speak, read, or understand English. Moreover, defendant did not claim to be innocent, but rather, expressed remorse for his actions. According to the People, "[o]n October 1, 2012, the defendant appeared with counsel ... with an interpreter present." He requested an adjournment "to have the immigration ramifications of his guilty plea explained to him in Spanish." Three weeks later, on October 22, 2012, defendant appeared with counsel and requested another adjournment, to November 19, 2012. In a memorandum of law, the People contended that the offer was first made to defendant at a September 17, 2012 court appearance, "and he was given a two week adjournment to consider it."
The People argued that defendant did not show that there was a reasonable probability that, but for counsel's alleged errors, he would not have pleaded guilty and would have insisted on going to trial. Given the strength of the People's case, the lack of a viable defense, and the enhanced penalties and ramifications upon being convicted of a felony, rejecting the plea offer and opting for trial would not have been rational.
The People further argued that defendant's claim that his actions were the product of confusion is belied first by the fact that he used a different name, date of birth and social security number on the MV–44 forms at issue than those reflected on his revoked license. His answers, while false, were directly responsive to the questions, demonstrating that he understood the questions. If defendant had a question about the MV–44 forms, he easily could have received Spanish-language assistance, available at the DMV.
Finally, the People argued that defendant's claim that the court did not inform him of the immigration consequences of his guilty plea, in accordance with People v. Peque (22 NY3d 168 [2013] ), is procedurally barred because such a claim could have been raised on a direct appeal. Moreover, Peque applies only to pleas to felonies.
In a decision and order dated October 29, 2014, the City Court denied defendant's motion, without a hearing, reasoning that defendant had accepted an advantageous plea, and rejecting his assertion that he would have refused the plea bargain and insisted on going to trial. The court also found defendant's claims that his counsel did not review the misdemeanor conviction waiver of rights form with him, and that there was no Spanish interpreter when he signed the document, to be without merit. Finally, the court determined that its failure to warn defendant of the immigration consequences of the plea did not require the granting of the motion, as Peque did not apply to misdemeanors, such a claim could have been raised on a direct appeal, and, in any event, there was no reasonable probability that defendant would have rejected the offer and gone to trial even if the court had provided the warning.
Defendant was granted leave to appeal to this court. On appeal, defendant essentially raises the same arguments as he raised in the City Court. In addition, he argues that since he would have faced deportation whether he accepted the plea or went to trial, he had nothing to lose by going to trial. In its review of the facts in their brief, the People assert that, on "October 1, 2012, defendant appeared with counsel ... with an interpreter present." After counsel indicated that he had explained the ramifications of the People's current position' to defendant, counsel requested a three week adjournment, presumably so that defendant could consider those ramifications.' "
At the outset, the decision of the United States Supreme Court in Padilla v. Kentucky (559 U.S. 356 [2010] ) applies in this case, even though the courts have held that Padilla does not apply retroactively to postconviction proceedings/cases on collateral review (see Chaidez v. United States, 568 U.S. ––––, 133 S Ct 1103 [2013] ; People v. Baret, 23 NY3d 777, 782 [2014] ), as defendant was sentenced on April 22, 2013, more than three years after Padilla had been decided on March 31, 2010 (cf. People v. Varenga, 26 NY3d 529, 532–538 [2015] ; People v. Alvarez, 49 Misc.3d 133[A], 2015 N.Y. Slip Op 51448[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2015] ).
In Padilla, the United States Supreme Court held "that the Sixth Amendment requires criminal defense counsel to advise their noncitizen clients about the risk of deportation arising from a guilty plea" ( People v. Baret, 23 NY3d at 781–782 ). As in Padilla, defendant here faces deportation, and alleges that his "counsel provided him false assurance that his conviction would not result in his removal from this country" ( Padilla, 559 U.S. at 368 ).
Defendants who assert a claim of ineffective assistance of counsel must meet both "prongs" as set forth in Strickland v. Washington (466 U.S. 668 [1984] ): the deficiency of performance prong, and, with respect to guilty pleas, the prejudice prong, i.e ., that there is a reasonable probability that, but for counsel's errors, defendant would not have pleaded guilty and would have instead proceeded to trial (see People v. Hernandez, 22 NY3d 972, 974–975 [2013] ; People v. Picca, 97 AD3d 170, 176–180 [2012] ). In addition, New York courts "look to the fairness of the proceedings as a whole" in determining whether the defendant has received meaningful representation ( People v. Lujan, 114 AD3d 963, 963–964 [2014] ; see People v. Caban, 5 NY3d 143, 156 [2005] ; People v. Stultz, 2 NY3d 277, 284 [2004] ; People v. Benevento, 91 N.Y.2d 708, 714 [1998] ).
Here, the court file does not contain, and the People did not attach, the transcript of the court proceeding of October 1, 2012 to their papers in opposition to the motion. Even if that transcript does establish that an adjournment was so granted, it does not establish whether defendant's former counsel correctly advised defendant of the immigration consequences of the plea. "[I]naccurate advice about a guilty plea's immigration consequences" may constitute ineffective assistance of counsel ( People v. Baret, 23 NY3d at 785 ; see People v. McDonald, 1 NY3d 109, 111 [2003] ; People v. Joseph, 142 AD3d 627 [2016] ). Thus, a hearing on defendant's motion to vacate the judgment of conviction is warranted (see People v. Pinto, 133 AD3d 787, 791–792 [2015] ; People v. Galan, 116 AD3d 787, 789 [2014] ; People v. Samuels, 143 AD3d 401 [2016] ).
In Peque (22 NY3d at 168 ), the Court of Appeals established that a court, in taking a plea, must inform a non-citizen defendant of the immigration/deportation consequences of the plea. However, in a footnote, the Court indicated that, "[g]iven that defendants were convicted of felonies here, we have no occasion to consider whether our holding should apply to misdemeanor pleas" ( Peque, 22 NY3d at 197 n 9 ). Assuming, without deciding, that Peque also applies to misdemeanors (see People v. Dealmeida, 124 AD3d 1405, 1406 [2015] ; People v. Bassou, 44 Misc.3d 131[A], 2014 N.Y. Slip Op 51078[U] [App Term, 1st Dept 2014] ; People v. Mothersil, 45 Misc.3d 927, 931 [Crim Ct, Kings County 2014] ; see also People v. Wilson, 48 Misc.3d 129 [A], 2015 N.Y. Slip Op 50976[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; People v. Clerger, 46 Misc.3d 142[A], 2015 N.Y. Slip Op 50175[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; People v. Talbi, 45 Misc.3d 18, 20 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014] ), defendant's claim that the City Court did not so inform him was properly rejected. Such a claim "is not properly raised in a CPL 440.10 motion" because it would be clear from the face of the record ( People v. Lovejoy, 136 AD3d 513 [2016] ; see People v. Llibre, 125 AD3d 422, 423 [2015] ).
Accordingly, the order is reversed and the matter is remitted to the City Court for a determination de novo, following a hearing, of defendant's motion to vacate the judgment of conviction.
IANNACCI, J.P., and BRANDS, J., concur.