Opinion
4902/02.
Decided July 26, 2011.
Labe M. Richman, New York, New York, for the defendant.
Paul Harvey, Office of the Special Narcotics Prosecutor, New York, New York, for the People.
The defendant was charged by felony complaint with, inter alia, one count of Criminal Possession of a Controlled Substance in the First Degree, in violation of Penal Law (" P.L.") § 220.21 (1). On August 13, 2002, the defendant was convicted, by plea of guilty, of one count of Attempted Criminal Possession of a Controlled Substance in the Third Degree, in violation of P.L. §§ 110/220.16 (1). On November 7, 2002, the defendant was sentenced to a split sentence of six months incarceration and the balance of five years on probation. On April 16, 2011, the defendant filed a motion to vacate her conviction pursuant to Criminal Procedure Law § 440.10(1)(h), on the ground that she was denied effective assistance of counsel, thereby violating her constitutional rights. In the alternative, the defendant requests a hearing to determine whether the judgment should be vacated.
The defendant's motion, filed more than eight years after she pleaded guilty, is based on her claim that her trial counsel never informed her of the immigration consequences of pleading guilty. It is undisputed that at the time of the entry of the plea, the defendant was in the United States unlawfully having been granted entry on or about June 1, 1998 as a "Non Immigrant B1 Visitor for Business." The defendant violated the terms of her entry by failing to leave the country, as required, by June 30, 1998. ( See, Department of Homeland Security Notice to Appear appended to the defendant's reply affirmation of July 25, 2011). The defendant is currently in the midst of removal proceedings pursuant to section 240 of the Immigration and Nationality Act, as indicated in the aforementioned Notice to Appear.
The defendant asserts her innocence and maintains that had she been properly advised she would not have pleaded guilty. The court notes that both the plea and sentencing minutes are silent with respect to a discussion of any potential immigration consequencesor whether the defendant was advised by counsel of any such potential consequences.
In support of her motion, the defendant, in an affidavit appended to the motion, asserts that "I was never told that this conviction would bar me from ever getting a green card and that it was an aggravated felony under immigration law which would make me deportable with no remedy. In fact, I applied for a green card after my plea in this case."
The defendant also attaches an e-mail communication from the defendant's trial counsel, Andres Aranda, who indicates that he has "no recollection of this case, this defendant or of any conversations regarding the case, the plea and/or potential immigration consequences."
Discussion
In 2004, pursuant to People v. Ford, 86 NY2d 397 (1985), the failure of a lawyer to advise a defendant of the immigration consequences of pleading guilty did not deprive the defendant of effective assistance of counsel. On March 31, 2010, the United States Supreme Court ruled in Padilla v. Kentucky, U.S., 130 S. Ct. 1473 (2010), that an attorney's representation of a defendant is ineffective when the attorney, counseling a non-citizen defendant on whether to plead guilty to a crime for which deportation is mandatory, fails to advise the defendant that his guilty plea will result in the defendant's deportation. The law is clear that the crime to which the defendant pleaded guilty will result in the defendant's deportation. 8 U.S.C.A. § 1227(2)(B)(I).
In determining whether a defendant was denied effective assistance of counsel, a court must apply the standard of effectiveness applicable at the time counsel represented the defendant. Strickland v. Washington, 466 U.S. 668, 690 (1984); People v. Sanchez , 76 AD3d 122 , (1st Dept. 2010). The law in New York State at the time of the defendant's guilty plea was governed by People v. Ford, supra. However, Padilla v. Kentucky, supra, while not retroactive in the classical sense, does govern guilty pleas entered into at the time of the defendant's plea of guilty.
While the failure to advise a non-citizen defendant of the immigration consequences of aguilty plea did not constitute ineffective assistance of counsel, incorrectly advising anon-citizen defendant of the immigration consequences of a guilty plea did constitute in effective assistance of counsel. People v. McDonald , 1 NY3d 109 , 115 (2003).
It is clear that the law in Kentucky at the time of Padilla's guilty plea was similar to the law in New York. As noted by the Supreme Court:
There was one difference between the law in Kentucky and the law in New York. In Kentucky, providing incorrect information regarding the deportation consequences of guilty pleas was not considered ineffective assistance of counsel. Commonwealth v.Padilla, 253 S.W.3d 482, 485 (2008). In New York, incorrectly advising a defendant of the deportation consequences of a guilty plea fell below the prevailing standard of reasonableness and constituted ineffectiveness of counsel. People v. McDonald, 1NY3d 109, 115 (2003).
[b]efore deciding whether to plead guilty, a defendant is entitled to "the effective assistance of competent counsel." . . . The Supreme Court of Kentucky rejected Padilla's ineffectiveness claim on the ground that the advice he sought about the risk of deportation concerned only collateral matters, i.e., those matters not within the sentencing authority of the state trial court . . . In its view, "collateral consequences are outside the scope of representation required by the Sixth Amendment," and, therefore, the failure of defense counsel to advise the defendant of possible deportation consequences is not cognizable as a claim for ineffective assistance of counsel." . . . Kentucky high court is far from alone in this view.
Padilla v. Kentucky, supra, at pp. 1480 to 1481 (citations omitted).
Despite the state of the law in Kentucky, the Supreme Court found that, subsequent to the 1996 amendments to the 1952 Immigration and Nationality Act, which mandated deportation of non-citizens who were convicted of certain crimes, "the weight of prevailing professional norms supports the view that counsel must advise her client regarding the risk of deportation. "The Supreme Court also stated that "`[A]uthorities of every stripe-including the American Bar Association, criminal defense and public defender organizations, authoritative treatises, and state and city bar publications-universally require defense attorneys to advise as to the risk of deportation consequences for non-citizen clients. . . .'" Padilla v. Kentucky, supra, at 1482. The Supreme Court found that, despite the law in Kentucky, the advice given to Padilla by his attorney with respect to deportation fell below "the weight of prevailing professional norms" at the time and therefore, while Padilla's attorney's performance under the law in Kentucky was not deemed ineffective, Padilla was in fact denied effective assistance of counsel.
While People v. Ford, supra, was the law in New York when the defendant pleaded guilty, Ford has been abrogated by Padilla v. Kentucky, supra, and the standard in New York for judging counsel's performance in the area of immigration at the time of the defendant's guilty plea has, in effect, been replaced by the standard set forth in Padilla v. Kentucky, supra. Therefore, it is as if the law in New York, since 1996, was, and is, that the failure of an attorney to affirmatively and properly advise a non-citizen defendant of immigration consequences of a guilty plea constitutes ineffective assistance of counsel.
Finally, while the Supreme Court has not explicitly stated that Padilla v. Kentucky, supra, is applicable to guilty pleas entered into prior to the issuance of Padilla, it seems to have indicated that those guilty pleas are to be governed by the Padilla standard. In Chapa v. United States, U.S., 130 S. Ct. 3504 (2010), the Court vacated and remanded the Fifth Circuit's decision in United States v. Chapa, 354 Fed. Appx. 203 (5th Cir. 2009), "for further consideration in light of Padilla v. Kentucky." The Fifth Circuit, relying on precedent, Santos-Sanchez v. United States, 548 F.3d 227, 333 — 336 (5th Cir. 2008), rejected the defendant's challenge to her attorney's effectiveness because counsel allegedly misrepresented the deportation consequences of her plea. The Supreme Court's remand of a case involving a guilty plea entered into prior to the decision in Padilla v. Kentucky, supra, is a clear indication that the Supreme Court is of the opinion that Padilla is to be applied to cases involving pleas entered into prior to Padilla and subsequent to the 1996 amendments to to the 1952 Immigration and Nationality Act.
Having determined that Padilla is applicable to the plea in this case the Court now finds that even assuming, arguendo, that counsel, in some way, misrepresented the likelihood of deportation, defendant is not entitled to relief since she was not prejudiced. A defendant is guaranteed effective counsel by both state and federal law. Strickland v. Washington, 466 U.S. 668 (1988); People v. Ford, supra at 404 (1995). Under state law, counsel renders effective assistance when "the evidence, the law and the circumstances of a particular case, viewed in totality and as of the time of the representation reveal that the attorney provided meaningful representation." People v. Baldi, 54 NY2d 137, 147 (1981). To establish ineffective assistance of counsel, the defendant must establish that "his attorney's performance was so deficient and his actions so unreasonable that they fell outside the scope of professional competence." People v. Alexander, 162 AD2d 164 (1st Dept. 1990). In Strickland v. Washington, supra, the Supreme Court set forth a two-pronged test for evaluating claims of ineffective assistance of counsel. The first of those prongs requires proof that the counsel's assistance was in fact, ineffective. The second prong requires a showing that the ineffectiveness actually prejudiced the defendant.
To establish prejudice the defendant must show a reasonable probability that but for counsel's deficient performance, the outcome of the case would have been different. People v. McDonald , 1 NY3d 109 , 115 (2003). At the time the defendant entered her plea she was not, and had never been, a lawful resident of the Untied States. While the defendant appears to have entered the country lawfully, in 1998, she has remained here unlawfully since the expiration of her visa on June 30, 1998. All individuals entering or remaining unlawfully in the United States are presumed to know that such conduct renders them deportable. See generally, 8 USC 1182 [a] [6] [A] [I]; People v Mercado, 1741-2000, NYLJ 1202499022183 at 1 (Sup Ct. Bx County, 2011), citing cf, Hamburg-American Steam Packet Co. v. United States, 250 F 747, 758 (2d Cir 1918).
Accordingly, it is apparent that even had the defendant chosen to proceed to trial and been acquitted, she would nonetheless have been subject to removal. Indeed, the aforementioned Department of Homeland Security Notice to Appear lists 5 grounds upon which the removal proceedings are predicated. The last such ground listed is the fact of the defendant's conviction in the instant case. The remaining grounds are all related to the fact that the defendant is not a citizen or national of the United States and that she remained unlawfully in the country after June 30, 1998. Thus, deportation proceedings against this defendant were all but inevitable.
The lack of prejudice to the defendant is also demonstrated by the strength of the People's evidence, including the fact that the defendant was a target of a search warrant that resulted in the recovery of over 10 ounces of cocaine from the kitchen of the target premises. When the warrant was executed, the defendant was sleeping in the bedroom where $3,000.00 was recovered. In addition, the police found identification establishing that the defendant resided in the apartment. The overwhelming evidence all suggests that, despite the defendant's claim that she was unaware that her co-defendant had the drugs in the apartment, she would in all likelihood have been convicted of a class A-1 felony, for which she could have been sentenced to a minimum term of imprisonment of fifteen to twenty-five years with a maximum sentence of life. Instead, counsel procured an extremely favorable plea offer to a class C felony with probation and only six months of jail time. Under all the circumstances, the defendant has failed to establish that she received ineffective assistance of counsel.
Accordingly, the motion to vacate the judgment is denied.
The foregoing is the decision and order of the court.