Opinion
85356-93.
Decided May 24, 2011.
Hon. Kathleen M. Rice, District Attorney, Nassau County, Mineola, New York by: Andrea M. DiGregorio, Esq., Stephani Goldin, Esq., Mineola, NY, Attorney for Defendant.
Defendant, CHRISTOPHER COELHO, makes this motion seeking vacatur of his 1993 conviction by plea and demands a trial on the grounds that he was not advised by his then attorney that a criminal conviction could result in "immigration consequences" for him. Defendant was originally charged with Burglary in the First Degree, a C felony, but was allowed to plead guilty to a reduced charge of Attempted Burglary in the Second Degree, a D felony, and was sentenced to a five year term of probation on September 10, 1993. Defendant waived his right to appeal the plea and sentence and, until this petition, never sought collateral relief over the course of the intervening eighteen years. Defendant's request for relief is premised upon a retroactive application of Padilla v. Kentucky, ___ U.S. ___, 131 S.Ct. 1437, 176 L.Ed 2d 284 (2010).
Defendant's affidavit, exhibit B, page 1, paragraph 7.
INSUFFICIENCY OF DEFENDANT'S AFFIDAVIT
Unexplained Delay
Defendant argues that an eighteen year delay in bringing this matter to the Court's attention via collateral attack is adequately explained. Defendant claims that his application for a work permit was dependent upon his wife's status, and that numerous delays in his wife's application prevented him from making his application. (Defendant's affidavit, Exhibit A, p. 1-2, paragraphs 10 through 13). Defendant's affidavit, however, provides a woefully incomplete account of the delay he seeks to excuse. For example, Defendant never provides the date on which the process for his wife's work permit began. He fails to provide any meaningful details as to the efforts he or his wife took to overcome the unspecified delays until about 2007, when Defendant claims he and his wife then hired a third lawyer, and that in 2009 she obtained her green card (Defendant's affidavit, Exhibit A, page 2, paragraph 13). Only after his wife's work permit was granted did Defendant apply for his work permit. It was then, Defendant claims, he learned for the first time that because of his 1993 conviction his application might be denied and that he might be deported as well. Thus, Defendant argues, because he had no knowledge of any negative immigration consequences from his 1993 conviction until he applied for his own work permit, the eighteen year delay should not preclude him from relief. The Court takes notes of the negative effect of such a length of time on the accuracy of memory, recollection and recall.
Factual Inconsistency
There is also an important factual inconsistency in Defendant's affidavit. He avers that he has always been legally in this country by virtue of his wife's work permit, yet he claims that the permit was somehow delayed for a number of years. (Defendant's affidavit, Exhibit A, p. 1, paragraph 8). It is impossible to reconcile these two statements.
Absence of Legal Support
There is no affirmation from any of three immigration lawyers referred to by Defendant to explain his strategic choice to delay his work permit application for nearly eighteen years. Such affirmations would have been expected to shed light on a number of material issues such as: was the delay based on attorney's advice or Defendant's fault; was it necessary for Defendant to wait eighteen years to apply for a work permit; was there no other way for Defendant to apply for a work permit other than by waiting for his wife's permit to be approved. As well, the immigration attorneys would be in a position to perhaps clarify the apparent inconsistency of Defendant's claim of legal immigration status versus his claim that it took a number of years for his wife's work permit to be approved before he could apply for his work permit. (Defendant's affidavit, Exhibit A, p. 1, paragraph 8).
Further, there is no information submitted by the immigration attorneys that assesses Defendant's present immigration status. Defendant was sentenced to straight probation and never went to jail on the underlying conviction. The conviction itself is nearly twenty years old and Defendant has never been subject to any deportation action to date, despite living openly and notoriously in this Country, as Defendant puts it, having "worked and paid taxes in the United States since 1990" (Defendant's Affidavit, Exhibit A, page 1, paragraph 9). While Defendant never clearly states his status since 1990 other than to say he was in the Unites States legally, even a cursory review of the materials available to attorneys counseling clients as to immigration consequences demonstrate that deportation is subject to numerous defenses and mitigations, including issues of retroactive application of ever-changing immigration law. See e.g., Thom v. Ashcroft, 369 F.3d 158, 164-166 (2d Cir. 2004).
immigrationdefenseproject.org is a website created to give handy reference to practitioners attempting to navigate the complex environment created after Padilla v. Kentucky. Among other things, the information contained at immigrationdefenseproject.org makes clear that immigration laws have changed frequently over the years and have become more harsh since Defendant's conviction.
We note also that while Padilla v. Kentucky addressed the extreme consequences of deportation, plea counsel's carefully worded affidavit (Defendant's Exhibit B) speaks of advice on citizenship, not deportation. Moreover, plea counsel's affidavit is equivocal at best as to the advice supplied in 1993: "I have no present recollection of ever advising Mr. Coelho that a guilty plea to attempted burglary might affect his ability to become a U.S. citizen." The affidavit's ultimate impact is neither "Yes, I gave the advice," nor "No, I did not give the advice." Thus, plea counsel's affidavit adds no evidentiary support to the claim made by Defendant on this essential factual issue.
In sum, the Court finds that Defendant's allegations alone are insufficient to support his application. Defendant's motion is therefore denied. CPL 440.30 (b) and (d).
INEFFECTIVE ASSISTANCE OF COUNSEL
Retroactive Application of Padilla
While the Court finds Defendant's motion insufficient pursuant to CPL 440.30 (b) and (d), a consideration of the merits of Defendant's argument follows.
Defendant leaps a formidable hurdle in assuming the retroactive application of Padilla v. Kentucky based on non-controlling and less than uniform, lower court cases in New York, as well as disparate Federal decisions. Plainly, reasonable courts have differed on the issue and retroactive application of Padilla v. Kentucky is not the law in New York State. Morever, the United States Supreme Court has yet to address the issue.
Retroactivity is guided in New York by People v. Eastman, 85 NY2d 265 (1995). When a Supreme Court decision applies a well-established constitutional principle to a new circumstance, it is considered to be an application of an "old rule" and applied to cases retroactively. On the other hand, new rules of criminal procedure generally are not applied retroactively to cases which have become final before the new rules are announced. Eastman, 85 NY2d at 275. A case announces a new rule when the result was not dictated by precedent existing at the time the defendant's conviction became final. Eastman, 85 NY2d at 275-276. In 1993, when Defendant's conviction became final, deportation was considered a collateral consequence of a conviction and as long as Defendant received an advantageous plea and nothing else suggested counsel's performance was deficient, then Defendant received effective assistance of counsel without advice about deportation. See generally, People v. Ford, 86 NY2d 397 (1995). After Padilla v. Kentucky, however, the distinction between collateral and direct consequences of a plea was washed away by the Supreme Court when it comes to deportation. Thus, in Padilla v. Kentucky, failing to give advice on a plea's risk of deportation was considered deficient representation. This was not, however, a result clearly dictated by precedent existing in 1993 when Defendant's conviction became final. In this Court's view Padilla v. Kentucky created a new rule.
While Padilla v. Kentucky announced a new rule it did not qualify as a "watershed" event on the scale of Gideon v. Wainwright, 372 U.S. 335 (1963) such that it requires retroactive application in the instant case to avoid a miscarriage of justice. "It is unconscionable to convict and incarcerate a defendant who had no lawyer to give him advice about the legal process, present a defense or argue for leniency; it does not shock the conscience to deny a hearing about what immigration advice was given six years ago or more to a defendant who . . . avoided incarceration by taking a plea." People v. Kabre , 29 Misc 3d 307, 322; 905 N.Y.S. 2d 887 (Criminal Court, City of City of New York, 2010). See generally, Gacko v. U.S., 2010WL 2076020 (E.D.NY 2010) (no retroactive application of Padilla v. Kentucky in deciding collateral attacks on convictions).
See e.g., People v. Strawbridge , 76 AD3d 115 (3d Dep't. 2010). In Strawbridge a depraved indifference murder conviction was not overturned on collateral attack despite case law changes requiring the People to prove an additional element for depraved indifference murder after Strawbridge's conviction became final. If sustaining a murder conviction under such circumstances is not a miscarriage of justice, it is difficult to see how Defendant's situation would qualify.
Neither the Courts nor the defendant's attorney are guarantors of flawless outcomes. A defendant is entitled to a fair trial, not a perfect one. People v. Walker , 2 AD3d 656 (2d Dep't 2003); People v. Benevento, 91 NY2d 708 (1998). Neither is Defendant entitled to a flawless plea deal judged in hindsight against any and all future changes in precedent or statute. If, as here, the plea was knowing and voluntary and defendant obtained a benefit, and there was no doubt as to the apparent effectiveness of counsel judged by the standard of the time, the plea should not be disturbed absent a "watershed" event that renders Defendant's conviction a miscarriage of justice. Thus, this Court will not apply Padilla v. Kentucky retroactively to Defendant's collateral attack on his conviction, a judgment that was final long before the Supreme Court's decision.
Standard for Effective Assistance
The standard for evaluating whether Defendant received effective assistance of counsel under the United States Constitution is outlined in Strickland v. Washington, 466 U.S. 668 (1984). In short, the test is first, whether counsel's performance was deficient and second, whether the deficient performance was prejudicial. The second prong is met only if Defendant can show that but for counsel's errors he would not have pleaded guilty. Hill v. Lockhart, 474 U.S. 52 (1985). Under the New York State Constitution, the test is summarized by examining prejudice in terms of whether Defendant received meaningful representation. See People v. Benevento, 91 NY2d 708, 713 (1998); People v. Caban , 5 NY3d 143 (2005). When defendant receives an advantageous plea and the record does not cast doubt on the apparent effectiveness of counsel, counsel is deemed to have furnished meaningful representation. See e.g., People v. Boodhoo, 191 AD2d 448, 449 (2d Dep't. 1993).
Most important here is Defendant's admission (Exhibit A, page 1, paragraph 4) that he took the plea because there was a commitment from the Court of five years' probation. After a conviction of the top count at trial he faced up to seven years' incarceration, with some period of incarceration being mandatory. Thus the plea bargain was clearly of value to Defendant. According to Defendant's plea allocution he had a venal motive for the Burglary, namely, to relieve personal financial problems. He had already gained entry and was in the house picking out property to steal when the police arrived and caught him leaving the house (Minutes of Plea, Exhibit C, pages 9 — 10). On such evidence a conviction after trial was likely. Defendant's present argument (Attorney's affidavit in support, page 6, bottom of first paragraph), that even after a conviction at trial he would have been put on probation is a self-serving, unrealistic scenario and fails to persuade the Court on these facts.
Burglary in the second degree is a violent felony offense and a conviction after trial carries mandatory imprisonment. Penal Law sections 70.02 (1) (b) and 70.02(2)(a).
In his affidavit Defendant also makes much of his desire to provide for the security and stability of his family, again ignoring the fact that he faced a maximum of seven years in jail. Any time in jail might well have cost him his job, thus jeopardizing the familial security and stability he claims to have prized. Based on his own statements and the strength of the case, then, it is reasonable to conclude that Defendant had immediate economic and familial concerns in mind when agreeing to take the plea and that securing probation rather than risking jail was indeed a benefit. Thus, Defendant received effective assistance of counsel under the New York State and Federal Constitutional standards.
While we hold that Padilla does not apply retroactively, Defendant's claim that he would not have taken the plea but for his attorney's failure to advise as to the immigration consequences is also unpersuasive on these facts. Defendant alleges that the most important issue in 1993 was his immigration status, not jail. Yet the record is plain that for largely unexplained reasons he waited nearly eighteen years to make his application for a work permit. Notably, during this time Defendant claims to have known of no barrier to his application for a green card, yet he still delayed. The delay belies his present argument as to the vital importance his immigration status held for him in 1993. Thus Defendant's argument that "but for" his attorney's flawed immigration advice he would not have taken the plea is unpersuasive.
Defendant's remaining contentions have been considered and found to be without merit. Thus, Defendant's request for relief is denied in all respects. SO ORDERED.