Opinion
9846/1990.
Decided May 13, 2011.
Defendant, a fugitive for nearly twenty years after pleading guilty to attempted criminal sale of a controlled substance in the third degree in 1991, moves to either vacate that plea, or have the Court dismiss the case outright. He was prosecuted under the name Charlie Ramirez. Defendant is not a United States citizen, and claims to have been granted lawful permanent resident status in 1994 under the name Virgilio Jiminez. Federal authorities in Miami discovered the 1991 warrant issued for defendant's arrest after he failed to appear for sentencing when defendant attempted to reenter the United States in November 2010 using a passport issued by the Dominican Republic. He was returned to New York to face his long-avoided sentence. He also faces removal from the United States.
Defendant makes legal challenges to the sufficiency of the plea allocution itself, as well as arguing that his legal representation in 1991 was insufficient under the Supreme Court's 2010 decision in Padilla v. Kentucky, 130 S.Ct. 1473 (2010). Defendant also challenges the Court's jurisdiction to pronounce sentence twenty years after he pled guilty. Finally, defendant makes a post-plea application to have the case dismissed in the interest of justice, ostensibly because he faces mandatory removal by the Department of Immigration and Customs Enforcement as a result of the plea, and will be separated from his three children, who were born in the United States between 1994 and 2001. After filing an affirmation in opposition to all parts of the defense motion, the People entered into new plea discussions and offered defendant an opportunity to substitute a plea to a misdemeanor for the felony plea, with the stated purpose of aiding defendant in the removal proceeding. Upon review of the court file, reports prepared by the Department of Probation in 1991 and in 2010, as well as both parties' written submissions, and after considering the subsequent oral application to replace the felony conviction, the Court denies the motion.
THE RECORD IN 1990 and 1991
Defendant was arrested on November 20, 1990, inside 1085 Nelson Avenue in Bronx County. According to the felony complaint, an undercover police officer approached an unnamed, apprehended juvenile at that location, and indicated he wished to buy "perico," a Spanish word commonly used in narcotics transactions to refer to cocaine. The juvenile directed him to defendant. The officer handed defendant prerecorded buy money, and defendant handed the officer cocaine wrapped in tinfoil. According to an affirmation submitted by ADA Irene M. Cassetta in response to an omnibus motion, defendant was arrested within moments of the sale at the same location, and was found in possession of the buy money and fourteen additional tinfoil-wrapped cocaine packages. He was immediately identified by the undercover police officer as the person who sold him cocaine.
According to the pedigree section of defendant's rap sheet, he told the police his name was Charlie Ramirez, and his date of birth was June 21, 1962. He also said that he resided at 1085 Nelson Avenue. The "place of birth" information on the rap sheet indicates he said he was born in Puerto Rico. When defendant was interviewed by the Criminal Justice Agency following his arrest, he told them he was 28 years old, his date of birth was June 21, 1962, and he had lived in apartment 3A at 1085 Nelson Avenue with a friend named "Ramon" for just fifteen days prior to his arrest. He said he was unemployed and was currently not in school, although he said he completed one year of college. When defendant was arraigned, bail was set in the amount of $1,000; that bail was subsequently posted by an individual named Isabel Jiminez. Nothing more is known about her, and that money was forfeited long ago. The Legal Aid Society was assigned to represent defendant; his attorney was Jane Remler.
Defendant was subsequently indicted. Defendant's motion for a hearing to suppress the "buy money" and cocaine recovered from his person was granted. Defendant made five court appearances after he was arraigned on the indictment on January 7, 1991. On June 26, 1991, defendant appeared before the Honorable Robert Seewald, and pled guilty pursuant to the agreement his attorney negotiated.
During the plea allocution, defendant told the Court his full name was Charlie Ramirez, and he was 28 years old. Defendant affirmed he was pleading guilty to a reduced charge of attempted criminal sale of a controlled substance in the third degree in exchange for a promised sentence of one year in jail. He acknowledged that the plea was voluntary, and he agreed to waive his right to appeal as well as his right to "early release" from jail. Defendant further acknowledged he understood all of his Boykin rights, and was waiving them as well. ADA Cassetta stated on the record that the People were prepared to "prove beyond a reasonable doubt . . . that on November 20, 1990, at approximately 4:45 pm inside apartment number 5A located at 1085 Nelson Avenue in the Bronx, this defendant did sell one tin foil to an undercover police officer in exchange for $20.00, and . . . laboratory analysis . . . indicates that the item sold was, indeed, cocaine." Defendant, himself, then admitted he sold cocaine on the date and time, and at the location the People indicated.
The People agreed defendant could remain at liberty on bail pending sentence. Justice Seewald told defendant he had to be interviewed by the Department of Probation prior to sentencing. Justice Seewald cautioned defendant that if he failed to cooperate with probation, was charged with committing a new crime prior to the sentencing date, or failed to appear for sentencing, he could face a state prison sentence between five and fifteen years incarceration. The case was adjourned until June 26, 1991. As defendant left the courtroom, Justice Seewald once again admonished defendant: "June 26. That means you have to come back here to this part on June 26. Do you understand that Mr. Ramirez?" Defendant replied, "Yes."
Defendant was subsequently interviewed by the Department of Probation. Once again, he said his name was Charlie Ramirez, and his date of birth was June 21, 1962. According to the report, he also told the interviewer his place of birth was a town he called Chorellas which he said was in the country of Panama, and that his entire family still lived in that country. He reported graduating from the "Republic of Uruguay School" in Panama in 1979. He also said he came to the United States in November 1989, and had worked at odd jobs to support himself. Defendant said he lived at 560 West 192nd Street in Manhattan. The interviewer noted: "Denying guilt, the defendant stated that he pled on the advice of counsel and is satisfied with his plea." The interviewer also wrote defendant indicated "[i]mmigration authorities were notified of his arrest herein."
Ms. Remler had a separate pre-sentence memorandum prepared on defendant's behalf, aimed at convincing the Court and the People to agree to a non-jail sentence. The individuals who prepared the report conducted "two in-depth interviews with the defendant" sometime after June 13, 1991. Defendant told these Legal Aid interviewers his name was Charlie Ramirez, and he was a citizen of the Dominican Republic, born in a town called Bonao on June 21, 1962. He stated that all living members of his family, whom he named, resided in the Dominican Republic. He said his father, whose name he indicated to be Ramon Ramirez, had recently passed away. His mother, whom he called "Carmen (nee Martinez) Ramirez," was 63 years old at the time and recently had surgery in New York and had returned to the Dominican Republic to recuperate. Defendant indicated he "moved" to New York City sometime in 1989 and initially worked in restaurants. He was living here with a "friend of the family."
The memorandum purportedly contained a letter written by defendant to the Court and the District Attorney's Office. That is the only document missing from this submission.
This memorandum contains several letters written to and about defendant, and all refer to him as Charlie Ramirez. For example, there is a letter from George Washington High School indicating that Charlie Ramirez was enrolled in their English as a Second Language class. There is also a letter from a California company, Shaklee, Inc,, addressed to Mr. Charlie Ramirez at 560 W. 192nd Street, stating he was employed by that company as a New York City sales representative. The memorandum notes he held that job since April 1991. There is nothing in the memorandum indicating that defendant was legally present in the United States pursuant to a student or tourist visa. Defendant said he graduated from Dr. Elias Rodriguez high school in Bonao, holds a college degree in the name of Charlie Ramirez from a university in the Dominican Republic, and had worked in a government agency in the Dominican Republic under the name Charlie Ramirez before coming to the United States. He included a document he himself translated which states Charlie Ramirez had no criminal history in the Dominican Republic.
Defendant failed to appear for sentencing on June 26, 1991, and a warrant was issued for his arrest.
EVENTS FOLLOWING DEFENDANT'S 2010 APPREHENSION
On November 18, 2010, defendant was returned to the Bronx for sentencing, and an updated investigation from the Department of Probation was ordered. Defendant was interviewed for the report on December 21, 2010. He now says his name is Virgilio Jiminez. He states his date of birth is May 21, 1959, three years earlier than the date he provided to the Court, the police, the Department of Probation, and even his own attorney twenty years earlier. He told the current probation interviewer he is a citizen of the Dominican Republic, and was born in a town called Bonao in that country. He also told this probation interviewer that, in 1978, he graduated from "Doctor Elias Rodriguez in Bonao, DR," and he later received "a Bachelor's Degree in Animal Science from USED in [the] Dominican Republic." He had been living in North Carolina for the past twelve years, and had worked there for a company called Murphy Brown. He is married and he and his wife have three children, ages nine, fifteen and sixteen.
When the probation interviewer asked about this case, defendant said "he never pled guilty to anything." He claimed when he last spoke with his attorney, he "thought that she (Jane last name unknown) told him the case had been dismissed and he went back to Dominican Republic." He also stated he testified before the Grand Jury and appeared before the judge twice.
On February 11, 2011, defendant filed a motion seeking the aforementioned relief. In a sworn affidavit submitted in support of the motion, defendant states, "I was not guilty of sale or possession of drugs. I have never sold or possessed illegal drugs ever in my life." He further states that "various attorneys from the Legal Aid Society represented me at different times" and that "[e]ach attorney . . . was aware that I was a citizen of the Dominican Republic and that I was not a United States Citizen; that I was legally here in the United States on a ten year tourist visa." He also claims he "lived in the United States since 1987 when I came on a student visa with a scholarship. I obtained a tourist visa in 1990. My family had been living in the United States. In 1994 I obtained my green card."
Defendant further alleges that Ms. Remler "never said to me one word about there being any adverse immigration consequences should I plead guilty to attempting to sell drugs," and that at the time of the plea "I had intended to make my life here." Defendant claims he would have gone to trial had his attorney warned him of any potential immigration consequences that existed for him in 1991.
Defendant annexes many documents to his motion. One is a photocopy of a passport from the Dominican Republic in the name of Virgilio Secundino Jimenez De La Cruz, issued on November 8, 2005 and set to expire on November 8, 2011. Defendant indicates he has traveled several times between the Dominican Republic and the United States using this passport, and immigration stamps on the passport confirm this, as well as his detention on November 3, 2010. There is also a document, meant to establish that defendant has no criminal history in the Dominican Republic, which states that "Virgilio Secundo Jimenez De La Cruz has no criminal record" in that country.
Defendant also annexes a personal curriculum vitae, prepared sometime in 2010. In his purported employment history, defendant states that from 1985-1992, he worked in the National Experimental Center of Animal Research located in Pimintel, Dominican Republic. From 1992-1995, he oversaw dairy production with the Department of Agriculture located in Santiago, Dominican Republic. From 1995-1997, he states he was employed in Santo Domingo, Dominican Republic, as a technician for the Dominican Holstein Association. From 1997-1998, he was employed at another agricultural company located in the town of LaVega in that country.
Defendant submitted a series of tax returns, and employment related documents, showing he worked in North Carolina at various times from 1998 until 2009. He also annexes a letter from the human resources coordinator at Murphy Brown, LLC, an agricultural company located in Rose Hill, North Carolina. The letter states he worked there from 1998 until June 2010. Defendant also annexes birth certificates for his three children. The first child, a daughter, was born on February 25, 1994, in Bronx County. The second, another daughter, was born in Bronx County on October 20, 1995. The third, a son, was born in North Carolina in 2001. The father's name listed on all the birth certificates is Virgilio Jiminez. The children are all United States citizens by reason of birthright.
In the affirmation submitted in support of the current motion, defendant's attorney states that defendant was "twenty-eight years old" at the time of the plea in this case, and that he was "present in the United States legally at the time of his arrest on a tourist visa." On March 14, 2011, the People filed an affirmation in opposition in which they ask the Court to deny each branch of defendant's motion, without a hearing. After that submission, both sides asked the Court not to decide the motion, as they wanted to
negotiate a potential alternative disposition.
THE COURT'S REFUSAL TO ACCEPT THE PROPOSAL TO
ALLOW DEFENDANT TO WITHDRAW HIS GUILTY PLEA TO A FELONY AND SUBSTITUTE A PLEA TO A MISDEMEANOR
On April 20, 2011, the parties proposed a disposition in lieu of having the Court rule on the motion, in which the People would agree to allow defendant to withdraw his guilty plea to the felony drug sale and then substitute a plea to the misdemeanor charge of criminal facilitation, under Penal Law 115.00(1). That charge, which is not in the indictment, would require an admission, inter alia, that defendant aided another person who defendant knew was going to commit a felony, which in this case, would have to be criminal sale of a controlled substance. Defendant is anxious to accept this disposition. Both defense counsel and the People state they came up with this proposal because they believe a conviction for this crime would be looked upon more favorably in the pending immigration court removal proceeding.
The Court does not agree to this proposal for several reasons. First, this disposition would violate the Criminal Procedure Law's plea bargaining restrictions. CPL 220.10(5)(a)(iii) provides that a defendant charged with a class B felony in an indictment must plead to at least a class D felony. Therefore, accepting this disposition would create an appellate issue that would likely result in a reversal of the conviction. See People v. Bartley, 60 AD2d 283, 285-287(1st Dept 1977); see also People v. Hicks, 79 AD2d 887 (4th Dept 1980). The Court also refuses to accept an alternative proposal to allow defendant to substitute a plea to misdemeanor narcotics possession, which counsel also believes would be looked upon more favorably by the immigration court, as this substitute plea would also violate CPL 220.10(5)(a)(iii).
Although CPL 220.20(1)(h) provides that CPL 220.03 is considered a lesser included offense for plea purposes when the indictment charges criminal sale of a controlled substance, this section must also be read in conjunction with CPL 220.10(5)(a)(iii) when the indictment charges a B felony sale charge, as it does in this case.
Moreover, the record made by both defendant and the People is clear — they have reached this agreement solely to aid defendant in his attempt to avoid removal from the United States. As the Court has continuously reminded both the People and defense counsel, based on its own understanding of immigration law, defendant's admission to selling narcotics in this case would be admissible in his immigration proceeding, unless there was a legal or due process vacatur of the plea. As both sides acknowledge, a non-citizen convicted of selling narcotics in a state court faces mandatory removal from the United States. 8 USCS § 1227(a)(2)(B)(I). "[A]n alien remains convicted of a removal offense for federal immigration purposes when the predicate conviction is vacated simply to aid the alien in avoiding adverse immigration consequences and not because of any procedural or substantive defect in the original proceeding." Saleh v. Gonzales, 495 F3d 17, 21 (2d Cir. 2007); see also Sansui v. Gonzales, 474 F3d 341, 342-343 (6th Cir. 2007); Zaitona v. INS, 9 F3d 432 (6th Cir. 1993); see generally Matter of Pickering, 23 I N Dec 512, 521 — 22 (BIA 1999), rev'd on other grounds sub nom Pickering v. Gonzalez, 465 F3d 263 (6th Cir. 2006).
Defendant factually admitted he sold narcotics, and that guilty plea remains part of the overall record in this case, The evidence before the Court, and presumably the grand jury, shows that after working with an accomplice under the age of sixteen, defendant accepted "pre-recorded buy money" from a police officer posing as a customer, and then personally handed narcotics to that officer. When he was apprehended, he had the marked money tendered for the drugs in his possession, along with fourteen additional tinfoil packages of cocaine. This is far more than mere criminal facilitation. Defendant's plea admission would almost certainly subject him to removal in this case, regardless of whether the judgment of conviction would reflect the actual felony or a pinch-hitting misdemeanor. Indeed, the advice given about this proposal appears not only to be affirmatively wrong, but is precisely the type of advice the Supreme Court found to be ineffective in Padilla.
For all these reasons, the Court cannot accept this proposal.
MOTION TO WITHDRAW GUILTY PLEA BASED ON AN ALLEGED DEFECT IN THE ALLOCUTION
Defendant moves to withdraw his guilty plea because he now claims he is not guilty of selling, or even possessing, any narcotics in this case. He also argues that the plea allocution was not sufficiently detailed and therefore it was not a "knowing and voluntary" plea. This application is denied.
At any time prior to sentence, a court is entrusted with discretion to allow a defendant to withdraw a previously entered plea of guilty and be restored to pre-pleading status. CPL 220.60(3). A guilty plea is presumed valid, and a defendant moving to vacate or withdraw a plea has the burden of coming forward with a credible claim that the plea is invalid. See People v. Braun, 167 AD2d 164 (1st Dept 1990), citing People v. Session, 34 NY2d 254 (1974). A generalized claim of innocence does not in and of itself provide grounds to allow withdrawal of an otherwise validly entered guilty plea. See, e.g, People v. Carreras, 200 AD2d 534 (1st Dept 1994); People v. Graham, 191 AD2d 353 (1st Dept 1993). "Only in a rare instance will a defendant be entitled to a hearing" on a motion to withdraw a guilty plea. See People v. Tinsley, 35 NY2d 926, 927 (1974); see also People v. Rodriguez, 150 AD2d 812, 813 (2nd Dept 1989).
At the outset, the Court does not find defendant to be credible. This is relevant not only to the decision on this branch of the motion, but all other parts as well. Defendant has defrauded the Court, as well as the Department of Probation, by claiming two completely different identities, and does not explain whether he is really a person named Charlie Ramirez who was born in 1962 or a person named Virgilio Jiminez, born three years earlier. His current attorney, who provided the Court with a copy of defendant's passport indicating he was born in 1959, is apparently even confused, since he states in his own affirmation that defendant was only twenty-eight years old in 1990, which would make the date of birth on the passport untrue as well.
Moreover, defendant has provided no documentation to corroborate his current claim that he was legally in the United States in 1990 on a "ten year tourist visa," nor has he provided any documents confirming his statement that he was granted legal permanent resident status in 1994, let alone what his name would be in those documents. The Court is unaware of whether the Department of Immigration and Customs Enforcement is considering removing defendant from the country for any improprieties connected with his purported application for lawful permanent residence status, including whether he reported this arrest and conviction in that application. While the true answers to those particular questions are appropriately addressed in an immigration court, and may, in and of themselves, provide independent reason to order defendant's removal, See e.g. Solis-Muela v. Immigration and Naturalization Service, 13 F.3d 372, 376 — 377 (10th Cir. 1993), the seriousness of the discrepancies before this Court about his true identity, and lack of corroboration for his purported past and present legal status in the United States, make all defendant's factual claims unworthy of belief. Defendant's motion to vacate the plea on the merits also fails for several reasons. Defendant's self-serving argument that he was not guilty of selling or even possessing narcotics does not provide grounds to vacate the plea. Carreras, 200 AD2d at 535. The Court further rejects defendant's argument that the plea was not knowing and voluntary because he claims he was not advised that the People had to prove him guilty beyond a reasonable doubt. The record itself refutes this argument. ADA Cassetta specifically said the People "were ready to prove beyond a reasonable doubt" that defendant sold cocaine to an undercover police officer, and defendant said he heard and understood what ADA Cassetta said before he admitted he was guilty of the crime. Moreover, this was an extremely thorough plea allocution, during which Justice Seewald even advised defendant he was "giving up the presumption innocence that you have by pleading guilty." Defendant stated he understood he was giving up that right, as well as "your right to go to trial . . . your right to trial by jury of twelve citizens that would all have to find you guilty before you could be convicted . . . your right to remain silent . . . your right to take the witness stand and testify in your own defense . . . and to call witness in your behalf . . . and to have your lawyer cross-examine and confront the People's witnesses at trial." Given all this, there is no question that the plea allocution met all legal and constitutional requirements. People v. Harris, 61 NY2d 9,17-19 (1983).
MOTION TO VACATE PLEA PURSUANT TO PADILLA V. KENTUCKY
Defendant also moves to have his plea vacated because he claims his former attorney never discussed any potential immigration-related consequences that would flow from his conviction in this case. The Court agrees with the decision in Feliciano v. Rodriguez, 31 Misc 3d 128A (App Term 1st Dept 2011) that because of the "professional norms prevailing when defendant pled guilty" in this case, prior counsel would not have been ineffective even if she "fail[ed] to advise defendant of the immigration consequences of his guilty plea." ( Citing People v. Ford, 86 NY2d 397, 404-405 (1995)). Assuming, arguendo, that Padilla must be applied retroactively to any case in which a defendant alleges that an attorney failed to provide immigration-related advice to a non-citizen prior to that person's entering a guilty plea, defendant's motion nonetheless fails to state a viable claim of ineffective assistance of counsel.
Padilla is nothing more than a case applying the long-standing Strickland v. Washington, 468 US 668 (1974) test for assessing the constitutional effectiveness of counsel to a fact situation in which a defendant claims ineffectiveness based on counsel's incorrect advice about the potential immigration consequences of a criminal conviction. In order to state a valid claim for ineffective assistance of counsel, even in a Padilla-based context, "[a] defendant must show that counsel's performance was deficient" and that the deficient performance prejudiced the defense.'" People v. McDonald , 1 NY3d 109 , 113 (2003) ( citing Strickland, 466 US at 687). Here, defendant's motion papers fail to satisfy either part of the Strickland standard.
First, the Court finds no reason to credit defendant's claim that he never received any advice concerning immigration consequences of pleading guilty in this case. This allegation is based only on his self-serving affidavit, which is itself unworthy of belief for reasons already stated. Moreover, there is an unexplained absence of any statements from Ms. Remler about this claim. Defense counsel affirms that he had a conversation with Ms. Remler prior to drafting the motion and his own affirmation. Counsel neither obtained an affidavit from Ms. Remler, nor reports what she told him about defendant's allegation. Thus, since defendant has failed to provide any credible or corroborative evidence that his attorney's representation was deficient in the only manner alleged, he has failed to satisfy the first part of the Strickland test. see People v. Morales, 58 NY2d 1008, 1009 (1983); People v. Session, 34 NY2d 254 (1974); People v. Baker, 2010 NY Misc LEXIS 2237 (Sup Court Kings County).
Even if there were sufficient proof that defendant's attorney was somehow ineffective in the manner defendant claims, he has also failed to satisfy the second part of the Strickland test, because he has not credibly shown he suffered prejudice as a result of the purported lack of advice. Padilla did not eliminate the Strickland requirement that a defendant must allege prejudice in stating a claim of ineffective assistance with regard to advice about immigration consequences. In Padilla, 130 S.Ct. at 1477, the defendant was a lawful permanent resident at the time of the plea, whose pending removal was based exclusively on the criminal conviction for "transportation of a large amount of marihuana." The Court did not find that his lawyer's affirmative mis-advice, and the subsequent removal consequences, demonstrated prejudice on their own; it remanded the case back to the state court to determine "whether [Mr. Padilla] can demonstrate prejudice." Id. at 1487. Defendant, here, must do so as well.
In order to demonstrate prejudice, defendant must credibly "show that but for counsel's errors, he would not have pleaded guilty and insisted on going to trial." Hill v. Lockhart, 474 US 52, 59 (1985); see Baker, supra. Where a defendant is not in the country legally, and faces removal for this reason alone, even the potential Padilla prejudice is not present. Defendant has failed to establish that he had any legal right to be in the United States in 1991 through documentary proof. Moreover, the pre-sentence memorandum prepared by his trial attorney in 1991 does not mention anything about defendant being in the country legally pursuant to a valid visa. That report, which details defendant's life story, states only that he claimed then he had been in the United States for less than a year before he was arrested, quite different from defendant's current claim. With all the particulars he relayed about his family and his own life, there is no mention of defendant saying he had been granted a visa of any kind, which makes his current uncorroborated affidavit all the more incredible. While current counsel alleges that defendant worked and paid taxes on all income earned in the United States, he also says defendant was employed at Shaklee, a still-existing California corporation, in 1991, and it is believed this statement is based upon the Legal Aid memorandum. No documentation in the form of pay stubs, tax returns or current letters concerning defendant's tenure with this company are provided by defendant, which also calls into question whether he legally in the country when he was arrested. Since defendant has failed to show that his removal from the country in 1991 may have been inevitable because he was not legally present in the United States in the first place, he cannot claim prejudice based on the separate removal consequences of this conviction.
In any event, the record as a whole demonstrates that prior counsel provided overall effective representation. "[W]hat constitutes effective assistance . . . varies according to the unique circumstances of each representation' . . . [and] [s]o 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, the constitutional requirement will have been met.'" People v. Benevento, 91 NY2d 708, 712 (1989), quoting People v. Rivera, 71 NY2d 705, 708 (1988), and People v. Baldi, 54 NY2d 137, 147 (1981).
Not only did counsel file motions which resulted in the Court's ordering substantive pre-trial hearings, but she also secured a favorable plea agreement for defendant. This negotiated plea agreement was no small matter in this case. It must be viewed not only in the context of the very strong case against defendant, but also the sentencing climate at the time. This case took place when New York City's overall crime rate was significantly greater than it is now, and in fact was at or near the highest in its history. It was also the height of the "crack-cocaine" epidemic. And, the full-force of the so-called "Rockefeller Drug Laws" were still in effect. Defendant, if convicted of selling cocaine, the only count in the indictment, faced mandatory state prison. Not only did counsel negotiate a plea to a lesser crime, and a one year definite sentence in a city jail, but she also continued to work for her client to try to convince the Court to sentence defendant to probation while he remained at liberty even after he pled guilty.
Prior counsel cannot be held responsible for failing to predict that defendant would not return to court and elude capture for two decades. Nor can counsel be faulted for failing to anticipate that defendant would return clandestinely, establish a home and family under a completely different identity, and face removal from the United States and that family twenty years later because of this plea. Attorneys are now required to provide the best advice they can to non-citizen clients about the present immigration consequences of a criminal conviction; they are not required to be Nostradamus.
In the overall context of this guilty plea, defendant was afforded truly "meaningful representation." People v. Boodhoo, 191 AD2d 448, 449 (1st Dept 1993); People v. Mayes, 133 AD2d 905, 906 (3rd Dept 1987); see also Feliciano v. Rodriguez, supra. Accordingly, this part of the motion is denied as well.
MOTION TO DISMISS PURSUANT TO CPL 380.30
Defendant next asks the Court to dismiss the case, arguing that it has lost jurisdiction to impose sentence due to the passage of almost twenty years since the guilty plea. CPL 380.30(1) provides that the sentence for a convicted criminal defendant "must be pronounced without unreasonable delay;" otherwise a sentencing court may be divested of its jurisdiction. People ex rel. Harty v. Fay, 10 NY2d 374 (1961); People v. Drake, 61 NY2d 359, 364 (1994). New York has a strong policy against unreasonable delays in pronouncing sentence, and a defendant is entitled to be promptly sentenced after conviction, and entry of judgment may not be "indefinitely deferred or postponed." Matter of Hogan v. Bohan, 305 NY 110, 112 (1953). The passage of time alone is not dispositive of whether this right to prompt sentencing has been violated; the time element must be assessed concomitantly with the reason for the delay. Thus, where the People know an absconding defendant's whereabouts, they must make diligent efforts to secure the defendant's presence for sentencing, or risk dismissal. See Drake, 61 NY2d at 364. However, where a defendant makes a purposeful decision to abscond prior to sentencing, and conceals his or her identity to prevent re-apprehension, that defendant has forfeited his or her claim that the court has lost jurisdiction to pronounce sentence when they are finally returned. See e.g. People v. Allen, 309 AD2d 624 (1st Dept 2003); see also People v. Sigismundi, 89 NY2d 587, 589 (1997).
Defendant does not contest the fact that he wilfully absconded. He also does not allege any particular reason for failing to return to Court to face sentencing. The most obvious motive is a generic one many individuals have for failing to appear for sentencing when they know they are facing incarceration — they simply do not want to go to jail. But it is likely there was another motive that relates directly to his right to remain in the United States at that time. Although defendant now claims not to have known of any particular immigration consequences that would befall him as a result of the plea in this case, the probation report prepared after the plea notes defendant claimed he advised immigration authorities about his arrest in this case. If that statement were true, defendant would have been likely advised by immigration authorities that the law in 1991, as it still is today, would require that he be removed from the country based on the narcotics sale he admitted committing. That would have provided yet another motive for his purposeful decision to abscond, and then reappear with a different identity.
Defendant's claim that the People failed in their obligation to track him down and return him to Court for sentencing is remarkable, given his own conflicting accounts of where he was, what he was doing, and under which identity he was doing it since absconding. In 2010, defendant told the Department of Probation he returned to the Dominican Republic in 1991 because he thought the case was over. He introduces two birth certificates for his children born in Bronx County in 1994 and 1995, in which he reported that his name is Virgilio Jiminez. He claims to have worked in the United States during this period, and even claims to have received a "green card" to work in the United States in 1994, yet his resume lists contemporaneous years of purported employment in the Dominican Republic.
Once again, it boils down to the basic question of identity. The People have to know who they are looking for in order to track that individual down for sentencing. Defendant's deception about his true identity was so successful that, according to his own affidavit, he managed to have his application granted for lawful permanent residence status under the name Virgilio Jiminez — this, despite his having pled guilty to selling cocaine in this case, and despite the existence of an open felony warrant. Equipped with this different identity, defendant was also able to travel freely between the Dominican Republic and the United States, evidently for years, until his past identity, and this warrant, were ultimately discovered.
Thus, this is not a case where there was an "unreasonable delay" in bringing defendant before the Court for sentencing caused by the People. To the contrary, all of the delay in imposing sentence lies squarely and completely at defendant's feet. Accordingly, this part of defendant's motion is denied as well.
MOTION TO DISMISS IN INTEREST OF JUSTICE
Finally, defendant asks that the case be dismissed pursuant to CPL 210.40, in the "interest of justice." This branch of the motion is denied for several reasons. First, it is untimely. This is a pre-trial motion and must be made within forty-five days of a defendant's arraignment, not twenty years after a guilty plea. CPL 255.10(1)(a). In addition, the post-plea timing itself makes the merits extremely questionable. See People v. Field, 161 AD2d 660 (2nd Dept 1990). To the extent that the main, if not only, argument raised in support of this part of the motion relate to events after the plea, and therefore were not matters that could have been originally raised, and this may provide good cause "to excuse the procedural default" in CPL 255.20(3), Id., and that the motion may survive the guilty plea for this reason, Cf. People v. Jenkins , 11 NY3d 282 (2008), the Court nonetheless denies the application on the merits.
It is beyond cavil that dismissal of charges in the "interest of justice" is an extraordinary measure reserved only for the rarest of cases and should be utilized in unique situations where allowing the prosecution to proceed would result in extreme injustice. People v. Clayton, 41 AD2d 204, 207-208 (2nd Dept. 1973); see also People v. Bolton, 224 AD2d 436 (2nd Dept. 1996); People v. Perez, 156 AD2d 7, 10 (1st Dept. 1990); People v. Watson, 182 Misc 2d 644, 650 (Crim. Ct. Bronx County 1999). The compelling nature of the grounds presented must be apparent to such an extent that it "cries out for fundamental justice beyond the confines of conventional considerations." People v. Insignares, 109 AD2d 221, 223 (1st Dept. 1985). In determining the merits of such motion, the court should, to the extent possible, engage in a sensitive balancing of the applicable statutory factors, "individually and collectively," before concluding that dismissal of the charges is warranted. Jenkins, 11 NY3d at, 288, citing People v. Berrus, 1 NY3d 535, 536 (2003).
Here, defendant does not claim there was any misconduct involved in his arrest and prosecution and acknowledges that the felony to which he pled guilty is a serious offense. While he claims not to be aware of the strength of the People's case, there was compelling evidence of his guilt. Defendant's knowing and voluntary admission to selling narcotics places this application in a different context from a pre-plea or pre-verdict motion to dismiss in the interest of justice in regard to this factor as well. Defendant's focus is on his lack of criminal record before and after this case, and his life since he absconded. The injustice he claims is not his conviction per se, but his removal and the use of his guilty plea by the immigration court to facilitate that removal.
The fact that a criminal conviction will result in the removal of a non-citizen by federal authorities does not, in and of itself, justify dismissal of the pending criminal matter in the interest of justice. See People v. Reyes, 174 AD2d 87, 89 (1st Dept 1992); People v. Doe, 159 Misc 2d 799, 800 (Sup Ct. N Y County 1993). There is no question that removal of a parent by immigration authorities is devastating to children who are left behind. Of course, "the children, spouses and parents of innumerable other criminal defendants sentenced to State prison" suffer similar, and in certain cases perhaps greater, devastation. Reyes, 174 AD2d at 89. Defendant, in essence, is asking the Court to treat him differently than it would a citizen, because of the fact that his children will be the ones who will suffer by his removal from the country.
These are not easy decisions for any judge to make. Undoubtedly, defendant's three children would feel the loss of their father in their daily lives should they choose to remain in the United States and he is removed to the Dominican Republic. While no one has discussed the sentence defendant will receive, the People have not asked that he get more than the one year sentence promised in this case. So, it is not likely that he will be in prison after he is sentenced. At some point, he will be at home, albeit in a different country. There is a national debate about whether immigration laws should be changed in order to allow for some variance when removal involves the separation of families; the resolution of the overall problem complained of here is better left to the federal government, as immigration policy is a matter of federal law.
To the extent that a Court should weigh heavily the effects of an alien's removal on that individual's family on a case-by-case basis in ruling on a Clayton motion, the timing of this application makes defendant's desired outcome of "interest of justice" dismissal on the removal proceeding unlikely. New York law does not view a Clayton dismissal as "a favorable determination' of the underlying criminal action." Miller v. Star, 123 AD2d 750, 751 (2nd Dept 1986). "A dismissal in the interest of justice' is neither an acquittal of the charges nor any determination on the merits. Rather, it leaves the question of guilt or innocence unanswered." Ryan v. New York Tel. Co., 62 NY2d 494, 504 (1984). Here, defendant admitted guilt prior to the filing of this motion. Thus, the "question of guilt" is answered. The dismissal is sought despite defendant's admitting he sold cocaine to an undercover police officer. That admission would be used in the removal proceeding even if the case were dismissed in the "interest of justice" based on defendant's specific reason for seeking this relief. As with the parties' request to have the Court substitute a misdemeanor conviction for the felony charge defendant admitted committing, granting this Clayton motion would not prevent the immigration court from using defendant's guilty plea in his removal proceeding. Cf. Saleh, 495 F3d at 21.
Nonetheless, the removal factor, and its effect on the children, neither alone nor when considered along with the other factors in CPL 210.40, is sufficient in this case to merit a Clayton dismissal. Defendant's children have had great and commendable success in school and other endeavors in North Carolina. He too held down a legitimate job and bought a home and provided for his family for twelve years while living in that state. However, defendant also chose not to come back to Court in this State and face incarceration, a decision he made years before his children were born. He avoided facing the penal consequences of his actions for two decades. He acted with stealth and deception, and continues to do so. Justice has been avoided for years; dismissal of the charges now would not be in overall interest of that justice.
For the reasons stated herein, defendant's motion is denied in all respects. This constitutes the Decision and Order of the Court.