Opinion
No. 05420/1997.
2012-06-19
The PEOPLE of the State of New York, v. Franklyn SANTANA, Defendant.
Jorge Guttlein, Esq., New York, Megan Roberts, Esq., Assistant Attorney General, Office of the District Attorney, Bronx County, Bronx.
COLLEEN DUFFY, J.
On September 11, 1997, Defendant Franklyn Santana pleaded guilty to Attempted Criminal Sale of a Controlled Substance in the Third Degree, PL 110/220.39(1), a Class C felony. Defendant now seeks to vacate his guilty plea, contending that he was denied effective assistance of counsel because, among other things, his trial counsel did not inform him of the adverse consequences a guilty plea might have on his immigration status, pursuant to Padilla v. Kentucky, ––– U.S. ––––, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). Defendant also now denies that he is guilty of the crime.
For the reasons set forth below, Defendant's motion is denied.
I. PROCEDURAL HISTORY
On July 1, 1997, Defendant was charged with Criminal Possession of a Controlled Substance in the Third Degree, PL 220.16(1), and Criminal Sale of a Controlled Substance in the Third Degree, PL 220.39(1), both class B nonviolent felonies. In 1997, a class B nonviolent felony was punishable by an indeterminate sentence, ranging from 1 to 3 years to 8–1/3 to 25 years. See 1997 Penal Law § 70.00(2).
On September 11, 1997, Defendant pleaded guilty before the Honorable Megan Tallmer, A.S.C.J., to Attempted Criminal Sale of a Controlled Substance in the Third Degree, PL 110/220.39(1), a class C felony, in exchange for a promised sentence of five years probation.
At the plea proceeding, Defendant, after consultation with counsel, freely, voluntarily and willingly admitted that he committed the crime of Attempted Criminal Sale of a Controlled Substance in the Third Degree. Specifically, Judge Tallmer asked Defendant if, after consulting with his attorney, he wished to plead guilty to the felony of Attempted Criminal Sale of a Controlled Substance in the Third Degree. Defendant replied, “Yes.” Transcript of September 11, 1997 Plea Proceeding (hereafter “Plea Tr.”) at 3. The Court asked Defendant if anyone had forced him to plead guilty and Defendant responded, “no,” and the Court asked if he was aware that, by entering a guilty plea, he was giving up his right to a trial, to which Defendant responded “yes.” Id. at 3–4. The Court then asked, “By pleading guilty do you admit to me, sir, that on July 1st of this year at about 5:40 in the afternoon, at 2718 Morris Avenue, you attempted to sell cocaine to an undercover officer; is that true, sir?” and Defendant replied, “Yes.” Id. at 5. The Court then accepted Defendant's guilty plea. Id. at 5.
On October 22, 1997, Defendant was sentenced to time served plus five years probation by the Honorable Vincent Quattrochi, A.S.C.J. Transcript of October 22, 1997 Sentencing Proceeding (hereafter “Sent. Tr.”) at 2–3.
On July 13, 2011, Defendant filed this motion, pursuant to CPL § 440.10(1)(h), seeking to vacate his 1997 conviction. Almost fifteen years after he pleaded guilty, Defendant now contends that he is not guilty of Attempted Criminal Sale of a Controlled Substance in the Third Degree, P.L. § 110/220.39(1).
In addition, according to Defendant, retroactive application of the holding in Padilla, which was decided 13 years after Defendant's guilty plea, warrants a finding that Defendant's trial counsel was ineffective for failing to advise him of the negative collateral consequences of his guilty plea. Defendant also contends that the court never informed him of the immigration consequences of his plea, that he was never informed of his right to appeal, and that trial counsel was ineffective for: (1) failing to assist him in understanding the proceedings, which were conducted in English, while Defendant spoke only Spanish; and (2) failing to advise him of his right to appeal.
Defendant has not alleged any immigration consequences that he has experienced as a result of his plea.
In his June 15, 2012, reply to the People's opposition, Defendant alleges, without setting forth even one fact, that his removal is imminent, even though he admits that he is not presently in immigration proceedings. See Memorandum in Support (“Reply Mem.”), filed June 15, 2012, ¶ 7–11. The elapse of approximately fifteen years since Defendant's guilty plea in this case, without immigration proceedings having been commenced, belies Defendant's contention of imminent removal. See Section III.B.2, infra.
On October 5, 2011, the People filed an opposition to Defendant's motion.
On October 25, 2011, Defendant filed an Amended Affirmation of Jorge Guttlein, Esq., in Support of the Motion, and a Notice of Affirmation of Jorge Guttlein, Esq., in Response.
On November 7, 2011, the People opposed Defendant's amended submissions, by letter to Judge Tallmer. The People also pointed out that the minutes of the plea and sentence proceedings evidence that, at each proceeding, a Spanish interpreter, provided by the Court, was present and translated the proceeding.
On November 16, 2011, Defendant filed a supplemental affidavit to the motion, from Christopher Booth, Esq., Defendant's retained counsel during the prosecution of this case, who was present during the plea proceeding (“Defendant's November 2011 Supp. Aff.”). Mr. Booth affirmed that he had no independent recollection of whether he provided any immigration advice to Defendant at the time of the plea, or whether it was his practice at that time to provide such advice to defendants.
Defendant originally was assigned counsel at his arraignment but appeared at the next court date with retained counsel, who filed a notice of appearance in the matter. Assigned counsel was then relieved.
On February 14, 2012, Judge Tallmer issued a written decision, in which she denied the motion without prejudice.
On April 3, 2012, Defendant file a Notice of Motion for reconsideration of his prior motion. Defendant attached new documents to this motion: (1) a letter from Mr. Booth's former law firm, stating that, due to the age of the case, they no longer possessed the file; and (2) copies of two letters sent by Defendant's current counsel to the attorney who represented Defendant at the sentencing proceeding, asking him for information as to any immigration advice he may have given to Defendant, which letters went unanswered.
On April 27, 2012, Judge Tallmer vacated all prior orders and decisions rendered on Defendant's motion to vacate his conviction and recused herself from the case.
Thereafter, the matter was transferred to this Court. By letter dated May 2, 2012, this Court informed the parties that it would decide the motion to vacate de novo. The Court set June 8, 2012, as the return date for the motion.
On June 7, 2012, the People filed an opposition to Defendant's April 13, 2012, motion for reconsideration.
On June 15, 2012, Defendant filed a reply to the People's opposition.
II. RELEVANT CASELAW
The crux of this case is whether a decision by the United States Supreme Court in 2010, Padilla v. Kentucky, ––– U.S. ––––, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), which held that failure to inform a defendant of the potential immigration consequences of a guilty plea constitutes ineffective assistance of counsel, is retroactive to this pre- Padilla case which is before the Court on collateral review.
In Padilla, the Supreme Court held that, where the defendant is a non-citizen, and the law as to the immigration consequences of his plea are unambiguous, defense counsel must advise their criminal clients that deportation “will” result from a conviction. Id. at 1483. Where the immigration consequences of a conviction are unclear or uncertain, counsel must advise that deportation “may” result. Id. In any case, counsel must give a defendant some advice about deportation-counsel may not remain silent about immigration. Id. at 1484.
Since Padilla, an open issue has existed as to the retroactive applicability of Padilla to cases on direct and collateral review. Indeed, New York courts, as well as federal courts that have addressed the issue, vary with respect to their determination of the issue. Currently, that issue is sub judice before the U.S. Supreme Court.
Even in the First Department, the courts are divided. Several trial courts and the appellate term have held that Padilla is not retroactive, see, e.g., People v. Feliciano, 31 Misc.3d 128A (App.Term, 1st Dept.2011); People v. Ramirez, 35 Misc.3d 1208A (Sup.Ct., Bronx Co.2011); People v. Tavarez, 2012 N.Y. Misc. Lexis 1878, 2012 WL 1452446, 2012 N.Y. Slip Op. 31053U (Sup.Ct., New York Co.2012).
Other trial courts have found Padilla to be retroactive on collateral review. See, e.g., People v. DeJesus, 34 Misc.3d 748, 935 N.Y.S.2d 464 (Sup.Ct., New York Co.2010); People v. Bennett, 28 Misc.3d 575, 903 N.Y.S.2d 696 (Crim.Ct., Bronx Co.2010).
This Court joins those courts that have applied the “precedent” analysis set forth by the United States Supreme Court in Teague v. Lane, 489 U.S. 288, 301, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), to determine that the Padilla rule is not retroactive as it is a new constitutional rule of criminal procedure, but not a watershed rule. See, e.g., People v. Llorente, 2012 N.Y. Misc. Lexis 587, *5, 2012 WL 470456, 2012 N.Y. Slip Op 50223U, ––––3 (Sup.Ct., Queens Co.2012); People v. Ramirez, 35 Misc.3d 1208A. See Section III.A. infra.
Chaidez v. United States, 655 F.3d 684 (7th Cir.2011), cert. granted,182 L.Ed.2d 867 (2012).
Until the Supreme Court decided Padilla in 2010, in New York, there was no affirmative duty by defense counsel to advise their clients of the immigration consequences, if any, of their plea. See People v. Ford, 86 N.Y.2d 397, 403, 633 N.Y.S.2d 270, 657 N.E.2d 265 (1995); People v. McDonald, 1 N.Y.3d 109, 114, 769 N.Y.S.2d 781, 802 N.E.2d 131 (2003).
In New York, the court must advise a criminal defendant, on the record, that, if he is not a U.S. citizen, his plea of guilty might lead to deportation, exclusion from admission to the United States or denial of naturalization pursuant to the laws of the United States. The failure of the court to so advise a defendant does not affect the voluntariness of the plea or the validity of the conviction. Criminal Procedure Law § 220.50(7); see also People v. Diaz, 92 A.D.2d 413, 413–14 (1st Dept.2012).
As set forth below, the question of whether Padilla retroactively applies to cases on direct and collateral review hinges on whether the Padilla rule, as a constitutional rule of criminal procedure, is found to be an “old rule” applied to new facts or is, in fact, a “new rule” of criminal procedure. Even if Padilla is a new rule, which, as set forth below, the Court so finds, it cannot be applied retroactively on collateral review unless it is a watershed rule, to wit, a groundbreaking change which, as set forth below, this Court finds it is not.
III. CONCLUSIONS OF LAW
Section 440.10(1)(h) of the CPL provides that, after entry of a judgment, a defendant may make a motion to the court in which judgment was entered to vacate the judgment on the grounds that it was obtained in violation of a right of the defendant under the United States Constitution or the constitution of this state.
Here, Defendant contends that, pursuant to Padilla, his constitutional right to effective counsel was violated.
The Sixth Amendment to the U.S. Constitution and Article 1, § 6 of the New York Constitution both protect a defendant's right to counsel at a criminal trial. To meet federal constitutional muster an attorney's representation of a defendant must meet a minimum standard of effectiveness which is evaluated in a two-prong analysis as to whether counsel's performance was deficient and, if so, whether such deficiency prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The federal standard, articulated in Strickland, requires a showing of prejudice: that, but for defense counsel's error, the outcome of the trial would have been different. Strickland, 466 U.S. at 694.
The New York standard of effectiveness requires, at a minimum, that a defendant be afforded “meaningful representation.” People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 (1981); People v. Benevento, 91 N.Y.2d 708, 713, 674 N.Y.S.2d 629, 697 N.E.2d 584 (1998); People v. Saint Hilaire, 5 Misc.3d 1023 A, 1023A (Sup.Ct., New York Co.2004). Under the New York standard, a defendant need only demonstrate that he was deprived of a fair trial overall. People v. Caban, 5 N.Y.3d 143, 155–56, 800 N.Y.S.2d 70, 833 N.E.2d 213 (2005); Rosario v. Ercole, 601 F.3d 118, 124 (2d Cir.2010), cert. denied, Rosario v. Griffin, ––– U.S. ––––, 131 S.Ct. 2901, 179 L.Ed.2d 1262 (2011).
Here, the Court finds that Defendant has failed to establish ineffective assistance of counsel under either the federal or state standard.
A. Padilla is not Retroactive
While no New York Appellate Division court yet has ruled on the retroactivity of Padilla to cases on collateral review, the Court finds that the rule announced in Padilla is not retroactive to this matter which is on collateral review.
Defendant erroneously contends that the Second Department's recent decision in People v. Picca, 2012 N.Y. Slip Op 4368, 2012 N.Y.App. Div. Lexis 4304, 2012 WL 2016397 (June 6, 2012), held Padilla to be retroactive. See Reply Mem. at ¶ 12. In Picca, the Second Department expressly pointed out that it was not facing a question of whether the Padilla rule is retroactive and found Padilla to be applicable in that case because that defendant's direct appeal was pending at the time the decision in Padilla was rendered. 2012 N.Y.App. Div. Lexis 4304, *11, fn. 1.
Although the Padilla case itself was before the Supreme Court on a postconviction motion to vacate conviction, the Court is persuaded by the determination of the United States Seventh Circuit Court of Appeals in Chaidez v. United States that the posture of Padilla does not indicate that the Supreme Court was announcing that its new rule should apply retroactively to all cases on collateral review. Chaidez v. United States, 655 F.3d 684, 694 (7th Cir.2011), cert. granted,182 L.Ed.2d 867 (2012).
In Chaidez, the Seventh Circuit found that Padilla was not retroactive on collateral review. Id. The Seventh Circuit noted that, while retroactivity is considered a threshold question, it need not be addressed where the appealing party does not address the issue, citing Caspari v. Bohlen, 510 U.S. 383, 389, 114 S.Ct. 948, 127 L.Ed.2d 236 (1994), and Collins v. Youngblood, 497 U.S. 37, 40–41, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990). In Padilla, the State of Kentucky had not addressed the issue of retroactivity. Accordingly, the Seventh Circuit opined that, in Padilla, the Supreme Court ignored the issue of retroactivity as it had not been raised and addressed the merits of Padilla's claim. Chaidez, at 693–94; see also Caspari, 510 U.S. at 389;Collins v. Youngblood, 497 U.S. at 40–41.
The Padilla court articulated a constitutional rule of criminal procedure. Chaidez v. U.S., 655 F.3d 684, 694 (7th Cir .2011), cert. granted,182 L.Ed.2d 867 (2012); Ellis v. U.S., 806 F.Supp.2d 538, 549 (E.D.N.Y.2011); People v. Llorente, 2012 N.Y. Misc. LEXIS 587, *4–5, 2012 WL 470456, 2012 N.Y. Slip Op 50223U, ––––3 (Sup.Ct., Queens Co.2012).
In Teague v. Lane, 489 U.S. 288, 301, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), the U.S. Supreme Court set forth the analysis relevant to determining whether a constitutional rule of criminal procedure is retroactive. Id. at 301. Specifically, the retroactivity of such rule hinges on whether the rule announced in Padilla is an “old” or “new” rule. Id. at 310. If such rule is an old rule applied to new facts, the rule applies retroactively to all cases on direct and collateral review. Teague at 303, 310; Chaidez v. U.S., 655 F.2d at 688.
A new constitutional rule of criminal procedure, however, applies retroactively only to cases that still are on direct review, ( Teague, at 310), unless it is a “watershed rul[e] of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding.” Whorton v. Bockting, 549 U.S. 406, 417, 127 S.Ct. 1173, 167 L.Ed.2d 1 (2007), quoting Teague, 489 U.S. at 311;Beard v. Banks, 542 U.S. 406, 417–18, 124 S.Ct. 2504, 159 L.Ed.2d 494 (2006).
A new constitutional rule also will be applied retroactively on collateral review if it is a substantive, rather than procedural, rule. Whorton, 549 U.S. at 416. Here, the parties do not contend that the Padilla rule is substantive. Indeed, the New York courts that have addressed this issue have found Padilla to be procedural. Llorente, 2012 N.Y. Misc. LEXIS 587, *5, 2012 WL 470456, 2012 N.Y. Slip Op 50223U, ––––3; People v. Tavarez, 2012 N.Y. Slip Op. 31053U, *10, 2012 N.Y. Misc. Lexis 1878, *8, 2012 WL 1452446; People v. Ramirez, 35 Misc.3d 1208A; see also Ellis v. U.S., 806 F.Supp.2d 538, 548 (E.D.N.Y.2011); Hamad v. U.S., 2011 U.S. Dist. LEXIS 45851, 2011 WL 1626530 (E.D.N.Y.2011).
Thus, the applicability of Padilla to cases on collateral review, the procedural posture of this case, necessarily requires a determination of whether Padilla is an old or a new constitutional rule of criminal procedure and, if a new rule, whether it is “watershed.”
In Teague, the Supreme Court determined that “a case announces a new rule when it breaks new ground or imposes a new obligation.... [A] case announces a new rule if the result was not dictated by precedent existing at the time defendant's conviction became final.” 489 U.S. at 301.
The analysis to determine whether a rule is a new rule or an old rule under Teague is “whether a state court considering [Defendant's] claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule [Defendant] seeks was required by the Constitution.” Saffle v. Parks, 494 U.S. 484, 488, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990).
With respect to whether there was precedent for the Padilla rule, it is evident that the rule was not dictated by precedent because there was a division between state courts and lower federal courts prior to Padilla as to whether counsel had an obligation to inform defendants of the criminal consequences of their pleas. Chaidez, 655 F.Supp.2d at 689.
Indeed, prior to Padilla, the New York Court of Appeals had determined that attorneys in New York were not required to advise their client of immigration consequences. McDonald, 1 N.Y.3d at 114, 769 N.Y.S.2d 781, 802 N.E.2d 131;People v. Ford, 86 N.Y.2d at 404, 633 N.Y.S.2d 270, 657 N.E.2d 265.
Moreover, before Padilla was decided, nine of twelve federal Circuit Courts of Appeal had held that such advice was not constitutionally required. Chaidez, 655 F.3d at 690;Tavarez, 2012 N.Y. Slip Op. 31053U, –––– 5–6, 2012 N.Y. Misc. Lexis 1878, *8, 2012 WL 1452446.
The majority of states that had considered the issue also had held that deportation was a collateral consequence, which attorneys did not have to explain. Chin & Holmes, Effective Assistance of Counsel and the Consequences of Guilty Pleas, 87 Cornell L.Rev. 697, 699, 703 (2002).
The Padilla decision, consisting of three separate written opinions, also indicates that it announced a new rule. Chaidez, at 689–90, citing Beard v. Banks, 542 U.S. at 414–15;Sawyer v. Smith, 497 U.S. 227, 236–37, 110 S.Ct. 2822, 111 L.Ed.2d 193 (1990). This “array of views” by the members of the Padilla Court-the majority opinion by Justice Stevens, a concurring opinion by Justice Alito, and a dissenting opinion by Justice Scalia-indicates that Padilla was not dictated by precedent. Chaidez, at 689, citing O'Dell v. Netherland, 521 U.S. 151, 159, 117 S.Ct. 1969, 138 L.Ed.2d 351 (1997).
Statements by the Justices in each of the majority, concurring and dissenting opinions also indicate that Padilla is a new rule. Chaidez, at 689–90, citing130 S.Ct. at 1488, 1491, 1492 (Alito, J., concurring opinion, referring to the majority's holding as a “dramatic departure from precedent,” “a major upheaval in Sixth Amendment law,” and a “dramatic expansion of the scope of criminal defense counsel's duties under the Sixth Amendment”), and 130 S.Ct. at 1495 (Scalia, J., dissenting, finding majority's extension of the Court's Sixth Amendment jurisprudence lacked “basis in text or in principle”).
For these reasons, the Court finds that the Supreme Court's decision in Padilla was not dictated by precedent but rather created a new procedural rule-which significantly departed from prior federal and state caselaw.
As a new constitutional rule of procedure, Padilla would not be retroactive to cases on collateral review, unless it was “watershed.” Schriro v. Summerlin, 542 U.S. 348, 358, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004); Whorton v. Bockting, 549 U.S. at 418;Beard v. Banks, 542 U.S. at 417–18;Hamad v. U.S., 2011 U.S. Dist. Lexis 45851, 2011 WL 1626530 (E.D.N.Y., 2011).
In order to be a watershed rule, such rule must be necessary to avoid an impermissibly large risk of an inaccurate conviction, and must “alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding.” Whorton, 549 U.S. at 418;Ellis v. U.S., 806 F.Supp.2d 538, 549 (E.D.N.Y.2011), citing Caspari, 510 U.S. at 396 (“[To be watershed, a rule], must be a groundbreaking occurrence', a sweeping' change that applies to a large swathe of cases”).
Courts have recognized only a few such rules as watershed. In fact, the Supreme Court only once has specifically stated that a new rule was retroactive, citing the case of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), which recognized the right to counsel pursuant to the Sixth Amendment. Mackey v. United States, 401 U.S. 667, 693–94, 91 S.Ct. 1160, 28 L.Ed.2d 404 (1971)(found Gideon altered the understanding of the bedrock procedural requirements for a fair conviction).
In People v. Eastman, 85 N.Y.2d 265, 624 N.Y.S.2d 83, 648 N.E.2d 459 (1995), the New York Court of Appeals determined that the Supreme Court's ruling in Cruz v. New York, 481 U.S. 186, 193–94, 107 S.Ct. 1714, 95 L.Ed.2d 162 (1987)-that the incriminating confession of a nontestifying co-defendant may not be admitted against a defendant-must be applied retroactively on collateral review because it implicated a bedrock procedural element, the constitutional right to confrontation. Id. at 275–276.
The Padilla rule is not such a watershed rule. First, it has nothing to do with the accuracy of a defendant's actual conviction. Ellis v. U.S., 806 F.Supp.2d at 549. It also “only applies to a limited class of defendants-noncitizen defendants who face charges that carry with them immigration consequences.” Id.; see also Llorente, 2012 N.Y. Misc. Lexis 587, *6, 2012 N.Y. Slip Op 50223U, ––––3, 2012 WL 470456. Finally, while the rule is based upon the right to counsel pursuant to the Sixth Amendment, the holding is narrow-simply interpreting Strickland in a new context. Ellis, at 549.
Accordingly, as this Court finds that the rule announced in Padilla is a new constitutional rule of criminal procedure, but it is not a watershed rule, Padilla is not applicable to this case which is pre- Padilla and is before this Court on collateral review.
As Padilla is not retroactive, Defendant's contention that his conviction should be vacated because his counsel failed to advise him of the immigration consequences of his plea fails.
B. Defendant has not Established that Counsel
Was Ineffective under the Federal Standard
1. Defendant has Not Established that Counsel's
Performance Was Deficient
Defendant has failed to establish, pursuant to the first prong of the Strickland test, that his counsel's performance fell below an objective standard of reasonableness. Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).
(a) Defendant's Claim of Ineffective Assistance of Counsel Because of Lack of Advice as to the Immigration Consequences of his Plea Fails
For the reasons set forth in Section III.A above, Defendant's claim of ineffective assistance of counsel on the grounds that defense counsel did not inform him of the immigration consequences of his plea fails. Defendant has not established that his counsel's performance fell below an objective standard of reasonableness, the federal test for deficient performance. Hill, 474 U.S. at 58;McDonald, 1 N.Y.3d at 113, 769 N.Y.S.2d 781, 802 N.E.2d 131.
As an initial matter, Defendant's motion is denied because Defendant has failed to establish that his counsel did not advise him of the immigration consequences his plea might have. CPL § 440.30(4)(b)(moving papers fail to substantiate all the essential facts); CPL § 440.30(4)(d)(allegation of fact is made solely by defendant and unsupported by any other affidavit or evidence). The affirmation of Defendant's former counsel, Christopher Booth, Esq., states only that Mr. Booth does not remember whether he so advised the Defendant. Defendant's November 2011 Supp. Aff. ¶ 4–5.
Even if Defendant had submitted evidence establishing that his trial counsel failed to advise him of the immigration consequences of his plea, his motion still would have to be denied because, at the time of Defendant's plea, the law in New York as to counsel's obligation to inform defendants of the immigration consequences of a plea was clear: Standing alone, the failure to advise a defendant of the possibility of deportation did not constitute ineffective assistance of counsel. People v. McDonald, 1 N.Y.3d at 114, 769 N.Y.S.2d 781, 802 N.E.2d 131 (failure to advise of deportation risk is not ineffective assistance of counsel); Ford, 86 N.Y.2d at 404, 633 N.Y.S.2d 270, 657 N.E.2d 265 (failure to advise of possibility of deportation does not constitute ineffective assistance of counsel).
Although there was a duty not to give affirmative misadvice, no such allegation exists here. McDonald, 1 N.Y.3d at 114, 769 N.Y.S.2d 781, 802 N.E.2d 131. In this case, Defendant does not contend that his attorney misadvised him; he contends only that he was given no advice as to the immigration consequences of his plea.
Accordingly, even if all the facts alleged by Defendant were true, because Padilla is not retroactive to this case, Defendant has not shown that his counsel's performance in failing to advise him of the immigration consequences of his plea was deficient under Strickland, according to the standard of reasonableness of attorneys in 1997.
Although the majority in Padilla found that professional associations and legal scholars supported the view that the standard of reasonableness required counsel to advise a client of the risk of deportation, ( Padilla at 1482), the weight of caselaw did not so hold. See Section III.A. More specifically, in New York, the Court of Appeals had held that the failure to give immigration advice was not ineffective assistance of counsel. Ford, 86 N.Y.2d at 403, 633 N.Y.S.2d 270, 657 N.E.2d 265;McDonald, 1 N.Y.3d at 114, 769 N.Y.S.2d 781, 802 N.E.2d 131;see also Manuel D. Vargas, “Working Paper on Immigration Consequences of Guilty Pleas or Convictions in New York Courts,” New York State Judicial Institute 2005, p. 9–10, http://www.ny courts.gov/ip/partnersinjustice/immigration-consequences.pdf (noting that New York's Court of Appeals “has not responded to the post–1996 trend in legal professional standards and in Supreme Court and other court jurisprudence of recognizing a higher standard of what constitutes effective assistance of counsel on the immigration consequences of a guilty plea....”)
(b) Defendant's Claim that Counsel did not Assist Him in Understanding the Proceedings Fails
Defendant's claim that his counsel was ineffective for failing to assist him in understanding proceedings conducted in English is plainly wrong. The Court record reflects that Defendant was provided with a Spanish interpreter at both his plea and sentencing proceedings. Pl. Tr. at 2; Sent. Tr. at 2.
(c) Defendant's Claim that Counsel did not Advise Him of his Right to Appeal Fails
Defendant's claim that his attorney failed to advise him of his right to appeal also is specious; the record evidences that, at the conclusion of the sentencing proceeding, Defendant was given a written notice of his right to appeal. Sent. Tr. at 2. Defendant's motion is denied on this ground as well,.
Accordingly, Defendant has failed to establish any deficiency in his counsel's performance such that it fell below the standard of reasonableness.
2. Defendant also has not Established Prejudice under Strickland
Even if Defendant had established that his counsel's performance was deficient, which he has not, Defendant's motion to vacate his conviction under the federal standard still would be denied because Defendant has failed to establish that he suffered any prejudice as a result, which is the second prong of the Strickland analysis.
Defendant erroneously contends that the prejudice prong is satisfied by his representation that, had he known that mandatory deportation was a consequence of his guilty plea, he would have gone to trial. People v. McKenzie, 4 A.D.3d 437, 440, 771 N.Y.S.2d 551 (2d Dept.2004); People v. Melio, 304 A.D.2d 247, 251–252, 760 N.Y.S.2d 216 (2d Dept.2003); Boakye v. United States, 2010 U.S. Dist. Lexis 39720, *16, 2010 WL 1645055 (S.D.N.Y.2010)(“[t]he conclusory claim in [defendant's] brief that he would have gone to trial but for counsel's alleged ineffectiveness, standing alone, does not establish prejudice under Strickland”).
In order to establish prejudice, Defendant must demonstrate 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.” McDonald, at 115, quoting Hill, 474 U.S. at 59;Picca, 2012 N.Y. Slip Op 4368, ––––5, 2012 N.Y.App. Div. Lexis 4304, *15–16, 2012 WL 2016397. Defendant must convince the Court that a decision to go to trial under the circumstances would have been rational. Padilla, 130 S.Ct. at 1485;Hill v. Lockhart, 474 U.S. at 59 (requires reasonable probability he would not have pleaded guilty and would have insisted on going to trial); see also People v. Bao Lin Xue, 30 A.D.3d 166, 815 N.Y.S.2d 566 (1st Dept.2006)(no reasonable probability that defendant would have insisted on going to trial but for counsel's alleged mistake in affirmatively misrepresenting the immigration consequences of the plea); McDonald, 1 N.Y.3d at 115, 769 N.Y.S.2d 781, 802 N.E.2d 131 (defendant must plead necessary facts to establish that he would have gone to trial); Melio, 4 AD3d at 251–252 (defendant must supply objective facts in support of claim that defendant would have gone to trial).
The McDonald court rejected the Third Department's analysis focused on predicting the likely outcome of a trial, in a case where the defendant had pleaded guilty. Instead, the Court said the analysis should be whether, but for counsel's errors, the defendant would not have pleaded guilty and would have insisted on going to trial. 1 N.Y.3d at 115, 769 N.Y.S.2d 781, 802 N.E.2d 131.
Defendant has supplied no facts to support his contention that he would have gone to trial had he been aware of the immigration consequences of a guilty plea. In addition, there is nothing in the record before the Court to establish that turning down the plea and proceeding to trial would have been a rational choice for Defendant.
In evaluating whether Defendant could have rationally made a decision to reject a plea offer and take his chances at trial, the Court must take into account the particular circumstances which would have surrounded Defendant's decision, including the strength of the People's evidence, the potential sentence, and “the particular circumstances informing [Defendant's] desire to remain in the United States.” Picca, 2012 N.Y. Slip Op 4368, ––––6, 2012 N.Y.App. Div. Lexis 4304, at *23, 2012 WL 2016397.
Here, while Defendant's plea to Attempted Criminal Sale of a Controlled Substance in the Third Degree meant that this conviction could subject him to mandatory deportation, this point alone does not mandate a finding that Defendant was prejudiced by his counsel's alleged failure to advise him of the immigration consequences of his plea. Despite the fact that this conviction subjected Defendant to mandatory removal, in light of all of the circumstances at the time of the plea, it still would not have been rational for Defendant to have made a decision to go trial.
Pursuant to the Anti–Terrorism and Effective Death Penalty Act of 1996, effective April 24, 1996, drug-related offenses became ineligible for any discretionary waivers of deportation. Pub.L. 104–132, § 440(d). A subsequent law, the Immigration Reform and Immigrant Responsibility Act, effective April 1, 1997, permitted the Attorney General to cancel removal for certain deportable aliens, but did not include aliens convicted of aggravated felonies. SeePub.L. 104–208(c); 8 U.S.C. 1229b(a). As “aggravated felonies” are defined to include “illicit trafficking in a controlled substance [as defined in 21 U.S.C. 802], including a drug trafficking crime [as defined in 18 U.S.C. 924(c) ]”, Defendant's September 1, 1997, guilty plea to Attempted Criminal Sale of a Controlled Substance in the Third Degree placed him in the mandatory deportation category.
In this case, the record reflects that counsel negotiated an extremely favorable plea bargain for Defendant, which involved no jail time, despite the fact that Defendant faced a serious jail sentence if convicted on both B felony counts, with a minimum prison sentence of 1 to 8–1/3 years incarceration and maximum prison sentence of 3 to 25 years. See 1997 Penal Law § 70.00(2). The evidence against Defendant was substantial, in that the case involved Defendant's selling cocaine to an undercover police officer. Defendant has not set forth any defenses or alleged that he has any evidence to confirm that he was not guilty of the crime. See People v. Llorente, 2012 N.Y. Misc. LEXIS 587, *10, 2012 WL 470456, 2012 N.Y. Slip Op 50223U, –––– 4.
In addition, there are no facts that existed at the time of the plea to indicate that the issue of deportation was important enough to have changed Defendant's decision to enter a guilty plea and forego the risk of the uncertainty of a trial and the risk of imprisonment. Picca, 2012 N.Y. Slip Op 4368, ––––6, 2012 N.Y.App. Div. Lexis 4304 at *23, 2012 WL 2016397. At the time of his arrest, Defendant was a new immigrant, having been admitted to the United States just 19 months earlier. Aff. of Jorge Guttlein, dated October 24, 2011, ¶ 6.
Indeed, Defendant's ties to the United States were not strong at the time of his plea. He had a young child who resided in the Dominican Republic. Id. at 10. The Court file also reflects that, at the time of his arrest, Defendant was unemployed, lived alone, and did not provide financial support to anyone. See New York City Criminal Justice Agency Interview Report, dated July 2, 1997. A record in the Court file at the time of arraignment in 1997 noted Defendant's “insufficient community ties.” Id.
In his motion, Defendant has emphasized his current ties to the United States, including his relationship with another child, an American citizen, who was born after the Defendant's guilty plea. Affirmation of Jorge Guttlein, Esq, dated July 8, 2011, ¶¶ 8–11; Amended Affirmation of Jorge Guttlein, Esq, dated October 24, 2011, ¶¶ 8–11, and Exhibits A and B. These facts are not germane to the Court's consideration of whether there is a reasonable probability that Defendant would not have pleaded guilty and would have gone to trial had he known of the immigration consequences of his guilty plea.
The proper inquiry on a motion to vacate for ineffective assistance of counsel is whether a decision to go to trial under the circumstances, at the time of the plea, would have been rational. See Padilla, at 1485 (defendant must demonstrate that a decision to forego the plea would have been rational under the circumstances); McDonald, 1 N.Y.3d at 115, 769 N.Y.S.2d 781, 802 N.E.2d 131;Melio, 4 AD3d at 251–252. Thus, Defendant's ties at the time of the plea, not the ties he now has to the U.S., are relevant to such analysis.
Accordingly, at the time of Defendant's plea, his minimal ties to the United States and his significant ties to the Dominican Republic demonstrate that this is not a case where the Defendant rationally could have chosen to have risked a 25 year prison sentence rather than accept a plea which would give him a sentence of probation and the potential for deportation to the country he had recently left and where he still had a young child and close family. See Picca, 2012 N.Y. Slip Op 4368, ––––6–7, 2012 N.Y.App. Div. Lexis 4304, *23–25, 2012 WL 2016397; People v. Gooden, 34 Misc.3d 1210A, 2012 N.Y. Slip Op. 50029U, *5 (Sup.Ct., Bronx Co.2012).
Defendant also has not alleged that he has suffered any immigration consequences. He has not alleged that any deportation proceedings have been commenced against him on any basis, let alone on the basis of this conviction. People v. Delacruz, 2011 N.Y. Misc. LEXIS 6556, 2011 N.Y. Slip Op 33588U, 2011 WL 7403312 (Sup.Ct. Kings Co.2011) (no prejudice shown where defendant does not assert that he has suffered any negative immigration consequences); Llorente, 2012 N.Y. Misc. Lexis 587, *5, 2012 N.Y. Slip Op 50223U, ––––11–12, 2012 WL 470456, (where removal proceedings also predicated upon two other convictions, defendant has not established that he would not have been deported but for this conviction); Bao Lin Xue, 30 A.D.3d at 167, 815 N.Y.S.2d 566 (court noted that conviction of even one of defendant's crimes would have led to deportation); People v. Gooden, 34 Misc.3d 1210A (Sup. Ct ., Bronx Co.2012).
Indeed, the fact that Defendant received a sentence of probation may have benefitted him in the immigration context in that incarcerated inmates may be more likely than non-incarcerated persons to be targeted by U.S. Immigrations and Enforcement Agency for deportation. See People v. Cristache, 29 Misc.3d 720, 739, 907 N.Y.S.2d 833 (Crim. Ct., Queens Co.2010)(noting that, as U.S. Immigration & Customs Enforcement devotes much resources toward incarcerated criminals, risk of removal may be reduced for non-incarcerated); see also Bernstein, Immigration Officials Often Detain Foreign–Born Rikers Inmates for Deportation New York Times, August 25, 2009, at A17 (New York Edition).
Without alleging any facts whatsoever to support his claim, Defendant contends that his removal is imminent and inevitable. See Reply Mem. at ¶¶ 7–11. Both the imminence and the inevitability of deportation are belied by the fact that Defendant has remained in the United States for almost 15 years without any immigration consequences since his conviction of this crime in 1997.
Accordingly, Defendant also has failed to meet the second prong of the Strickland analysis and his motion must be denied.
C.Defendant has not Established Ineffective Assistance of Counsel Under the New York Standard
Defendant's claim of ineffective assistance of counsel also fails under the New York standard as to whether the defendant was afforded “meaningful representation.” Baldi, 54 N.Y.2d at 147, 444 N.Y.S.2d 893, 429 N.E.2d 400;Benevento, 91 N.Y.2d at 713, 674 N.Y.S.2d 629, 697 N.E.2d 584;Saint Hilaire, 5 Misc.3d 1023 A.
The record demonstrates that, in the context of his guilty plea and sentencing hearing, Defendant, in fact, received meaningful representation in that he received an advantageous plea promise-to wit, a sentence of five years probation, instead of the significantly longer sentence of incarceration he could have faced if found guilty of the two B felony counts after trial. Moreover, in 1997, attorneys in New York were under no obligation to inform a defendant of the immigration consequences of a guilty plea, and nothing in the record suggests that Defendant's counsel was not effective. People v. Jones, 18 A.D.3d 964, 965, 795 N.Y.S.2d 765 (3rd Dept.2005); People v. Boodhoo, 191 A.D.2d 448, 448, 593 N.Y.S.2d 882 (2nd Dept.1993); People v. Saint Hilaire, 5 Misc.3d 1023A, 1023A (Sup.Ct., New York Co.2004).
As Padilla is not retroactive and defense counsel had no obligation to advise his client of the immigration consequences of his guilty plea in 1997, Defendant's motion to vacate on this ground also is denied.
D. Defendant's Claim that the Court did not Advise him Of the Immigration Consequences of his Plea Fails
Defendant also contends that the court never advised him of the immigration consequences of his plea. This claim, even if true, would not affect the validity or the voluntariness of Defendant's plea. Criminal Procedure Law § 220.50(7) (failure to so advise a defendant does not affect the voluntariness of the plea or the validity of the conviction); see also People v. Diaz, 92 A.D.2d at 413–14, 460 N.Y.S.2d 591.
E.To the Extent Defendant Seeks to Vacate his Plea on the Grounds that he is not Guilty, Such Motion Also Fails
Defendant's claim that he is not guilty of the crime to which he pleaded guilty also is unavailing.
The 1997 record of Defendant's allocution of his guilt shows that Defendant's plea was knowing, intelligent and voluntary. At the time Defendant pleaded guilty, the Court advised Defendant that, by doing so, Defendant was waiving his right to trial, waiving his right to call witnesses, and to cross-examine the People's witnesses. Pl. Tr. at 4. Defendant averred that there was no force or coercion or threat that made him plead guilty. Pl. Tr. at 3. Specifically, the Court asked Defendant, “Has anyone forced you to plead guilty to this charge?” Defendant replied, “No.” Pl. Tr. at 3. Thereafter, Defendant allocuted to the elements of the crime and admitted that he had committed the crime. Pl. Tr. at 5. Defendant's sworn statements to the Court evince an intelligent, knowing and voluntary plea.
Defendant pleaded guilty to a C felony on a Superior Court Information, having knowingly, intelligently and voluntarily, in written form and orally in open Court, waived his right to prosecution by indictment. Pl. Tr. at 4.
Accordingly, to the extent that Defendant seeks to vacate his conviction on the grounds that he now claims he is not guilty, such motion is denied as well.
IV. CONCLUSION
For the reasons set forth above, the Court finds that the Defendant was provided with meaningful representation and the effective assistance of counsel under both the federal and state standards. Defendant's motion to vacate his conviction is denied without prejudice.
The Court considered the following in addressing the motion: Notice of Motion and Affirmation of Jorge Guttlein, Esq., in Support of Motion, filed July 13, 2011; Affirmation of Megan R. Roberts, Esq ., Assistant District Attorney, in Opposition to Motion, filed October 5, 2011; Amended Affirmation of Jorge Guttlein, Esq., in Support of Motion, filed October 25, 2011; Notice of Affirmation of Jorge Guttlein, Esq., in Response, filed October 25, 2011; Letter to the Honorable Megan Tallmer, from Megan R. Roberts, Esq., dated November 7, 2011; Supplemental Affirmation of Christopher Booth, Esq ., undated, submitted by letter dated November 16, 2011; Notice of Motion for Reconsideration and Affirmation of Jorge Guttlein, Esq., filed April 3, 2012; Affirmation of Megan R. Roberts, Esq., in Opposition to Motion for Reconsideration, filed June 7, 2012; and Affirmation of Jorge Guttlein, Esq., in Response, and Memorandum of Law, filed June 15, 2012.
This constitutes the Decision and Order of this Court.