Opinion
2007KN086531.
Decided August 25, 2010.
For the People, Charles J. Hynes, District Attorney, Kings County, by Judith Arrons, Esq., Assistant District Attorney.
For the Defendant, Milton H. Florez, Esq.
By motion dated April 15, 2010, Defendant seeks to vacate his conviction in the above-captioned matter pursuant to CPL Sec. 440.10. Defendant asserts several grounds for his motion; first, he did not receive the effective assistance of counsel. Second, his plea was not "voluntary, intelligent and knowing." Third, Defendant asserts that "the Court failed to properly allocute the defendant."
Though Defendant does not specify which subsection of CPL 440.10 he brings his motion under, the Court will treat Defendant's motion as if brought under CPL Sec. 440.10(1)(h).
This court has reviewed Defendant's motion, as well as the Affirmation in Response submitted by the People dated July 20, 2010.
For the reasons stated below, Defendant's motion is denied in its entirety.
On November 13, 2007, Defendant was charged with one count of Criminal Sale of Marijuana in the Fourth Degree (PL Sec. 221.40), a Class A misdemeanor, and related charges. On November 14, 2007, Defendant entered a plea of guilty to this charge before this Court, and received a sentence of Time Served. Defendant paid the $160.00 surcharge on December 12, 2007.
To date, Defendant has not appealed his conviction in this matter.
Defendant asserts that prior to the entry of his guilty plea in this docket, he "specifically inquired to his attorney whether his immigration status would be adversely affected by a plea of guilty to a Class A misdemeanor." While Defendant does not report what advise he received from his attorney, Defendant next asserts that had he "been aware of the potential for deportation he would certainly have insisted on a trial in this matter." Thus, Defendant states that he did not receive the effective assistance of counsel in that his attorney misinformed him of the immigration consequences of his guilty plea.
It should be noted that all allegations contained in Defendant's motion are made by counsel. There is no affidavit of fact provided by Defendant himself.
In their Affirmation in Opposition dated July 20, 2010, the People note that they have made efforts to contact the attorney who represented Defendant at the time he entered his guilty plea, however, that attorney is currently on maternity leave, and "has not responded to the People's request for information." See, People's Affirmation in Opposition, p 2, footnote 1.
Before addressing the merits of Defendant's motion, this Court finds that a formal hearing in this matter is unnecessary. This Court presided over Defendant's plea and sentence. As such, this Court is "presumed to be fully familiar with all aspects of the case.'" See, People v. Demetsenare , 14 AD3d 792 , 793 (3d Dept., 2005) citing People v. Loomis, 256 AD2d 808, 808-809 (3d Dept., 1998), lv. den. 93 NY2d 854 (1999). This Court has also reviewed the record of the underlying proceedings, as well as the affirmations of the attorney's for the relevant parties. Therefore, no formal hearing is necessary. See, also, People v. Robetoy , 48 AD3d 881 , 883, 851 NYS2d 297 (3d Dept., 2008).
A review of the sufficiency of a Defendant's allegations of ineffective representation of counsel rests within the discretion of the judge to whom the motion is made. See, People v. Tinsley, 35 NY2d 926, 927, 365 NYS2d 926 (1974). To resolve a claim of ineffective assistance of counsel, the court must engage in a two-prong analysis. The court must determine whether counsel's performance was deficient, and whether the defendant suffered actual prejudice as a result of counsel's deficiency. People v. McDonald, 296 AD2d 13, 17, 745 NYS2d 276 (3d Dept, 2002), aff., 1 NY3d 109, 769 NYS2d 781 (2003); Strickland v. Washington, 466 US 668, 104 S. Ct. 2052 (1984); People v. Baldi, 54 NY2d 137, 444 NYS2d 893 (1981).
Recently, in Padilla v. Kentucky, 559 US ___, 130 S Ct 1473 (2010), the United States Supreme Court ruled that the failure of a criminal defense attorney to properly advise a defendant of the immigration consequences of a guilty plea was a violation of the defendant's Sixth Amendment right to effective assistance of counsel. Though Defendant does rely upon this decision, and the People assert that Padilla cannot be applied retroactively, this Court will address this issue at this time.
In Padilla, a lawful permanent resident of the United States was informed by his counsel that "he did not have to worry about his immigration status" if he plead guilty to transporting a large quantity of marijuana "since he had been in the country" for approximately 40 years. See, 130 S. Ct. at 1477-1478. This advise was incorrect, and defendant was subjected to removal proceedings. 130 S. Ct. at 1477.
In pertinent part, the Supreme Court agreed that counsel's representation fell below an objective standard of reasonableness, citing the first prong of the Strickland test. 130 S. Ct. at 1483. However, the Supreme Court remanded Padilla for a review of whether or not his counsel's failure to notify him of the immigration consequences of his plea prejudiced him, the second prong of Strickland. 130 S. Ct. at 1483-1484.
A court of concurrent jurisdiction has ruled that Padilla may be applied retroactively, since the Padilla decision "did not announce a new constitutional rule, but merely applied the well-settled rule of Strickland to a particular set of facts." See, People v. Bennett, ___ Misc 3d ___, 2010 WL 2089266 (Crim Ct, Bx Cty 2010). However, another court of concurrent jurisdiction has ruled that Padilla is not to be applied retroactively, despite there being "some support to the view that the Padilla rule is not new." See, People v. Kabre 2010 WL 2872930 (Crim. Ct., NY Cty, 2010). The Kabre court asserts that "the effectiveness of (defendant's) counsel will be judged as of the time of the representation."
Since the attorney who represented defendant in this matter is unavailable to tell us what advise she may or may not have provided to Defendant regarding the immigration consequences of his guilty plea, this Court will accept Defendant's uncontested assertion that he specifically asked about the repercussions of his plea. Defendant has therefore satisfied the first prong of the Strickland test — his counsel's performance fell below minimum standards of competent representation.
Whether Padilla is applied retroactively, or whether we judge defense counsel's actions by the standards of 2007, this result remains the same.
However, Defendant does not satisfy the second prong of the Strickland test.
A review of the minutes of Defendant's plea and sentence reveal that the People had requested $1500 in bail, and noted that this was defendant's "fourth marijuana arrest this year." See, Minutes of Plea and Sentence, p 2. Instead of waiting to see whether or not bail would be set, in a matter where the top count is punishable by up to one year in jail, Defendant opted to accept a plea to the charge with time served. This occurred after defendant consulted with his counsel, who made an effort to convince the Court to accept the plea to a lesser charge. See Plea and Sentence transcript, p. 2.
Defendant was instructed that his plea was to Penal Law Section 221.40, "a class A misdemeanor." He was asked by the Court if he was "pleading guilty voluntarily and of your own free will," to which the Defendant answered "yes." Plea and Sentence transcript, p. 3. Defendant was then asked if he admitted "that on November 14, 2007, 6:35 PM, at 4th and Rodney, in the County of Kings you sold marijuana to another person," to which question Defendant again answered "yes." See, Plea and Sentence transcript, p. 3.
Defendant was also asked if he understood that he was giving up his right to a trial, his right to confront the People's witnesses, and the right to remain silent. He again answered "yes." He was then asked by this Court if he was being forced to plead guilty. Defendant answered "no." See Plea and Sentence transcript, p. 3-4.
This Court then asked Defendant if "anyone (made) any other promises to you other than the sentence I have promised." The record shows Defendant answered "no" to this inquiry. See, Plea and Sentence transcript, p. 4.
Defendant declined the opportunity to speak before sentence was imposed. See, Plea and Sentence transcript, p. 4.
Based upon this review, it is clear that "defendant was not prejudiced' by his attorney's alleged shortcomings. Rather, defendant was solely motivated to plead guilty in order to avoid — at all cost — a . . . prison term." See, People v. Robles-Mejia, 27 Misc 3d 1219(a), 2010 WL 1855762 (S Ct Bx Cty 2010).
It cannot be ignored that Defendant had, in fact, been arrested three times before the instant matter, all for marijuana-related charges, and all between April and October of 2007. "Succinctly stated, defendant was willing to pay any price — regardless of the immigration consequences — to draw the proverbial and most desirable get-out-of-jail-card.' Having thus drawn that card, defendant's current self-serving statements to the contrary . . . are palpably insufficient to establish prejudice as defined by Strickland." Robles-Mejia, 27 Misc 3d at 1219(a).
Most significant, Defendant was specifically asked if any other promise was made to him, other than the sentence, before he plead guilty. Defendant did not tell the court that he was promised his plea would not affect his immigration status.
In Robles-Mejia, the court noted that in its plea allocution, defendant stated "no" when asked "if any other promises or threats had been made to force or induce him to plead guilty" Id. at 1219(a). See, also, State v. Quiroga, 2007 WL 1774197 (App. Div., NJ 2007) (In denying defendant's appeal, New Jersey Appellate Division noted that "at the time of the plea (the court) asked defendant: Other than what's been placed on the record, has anybody made any additional promises to you as to what would happen at the sentence if you pleaded guilty other than what we've laid out here on the record?' Defendant answered, No.'") Id. at p. 1.
Thus, it is apparent that at the time Defendant entered his plea of guilty, he was more concerned with remaining at liberty than with any future immigration consequences his plea might entail.
As to defendant's contention that the Court failed to properly allocute the Defendant, "the foregoing sufficiently establishes that defendant's plea was voluntary and knowing." People v. Brown, 126 AD2d 898, 901, 510 NYS2d 923 (3d Dept., 1987), app. den., 70 NY2d 703, 519 NYS2d 1037 (1987). The record of the minutes of Defendant's plea and sentence reviewed above do not reveal any evidence that Defendant did not understand the terms of his plea bargain. There are no deficiencies in the plea allocution or inconsistencies in Defendant's responses. His answers were clear and unequivocal.
Defendant asserts that evidence for the involuntary nature of his plea can be found in his calling the court "ma'am," and in the Court's retort "do I look like a ma'am to you?" See, Plea and Sentence transcript, p 3. This Court does not agree. At most, this exchange only shows that initially, defendant may have been nervous. In fact, Defendant answered the rest of the Court's questions without incident or hesitation. See, Plea and Sentence transcript, p 3.
Defendant has gained the benefit of a negotiated plea bargain, in which he plead guilty to a reduced charge, and received a sentence which avoided a possible term of incarceration. See, People v. Bankowski, 134 AD2d 768, 521 NYS2d 809 (3d Dept, 1987). "The mere fact that defendant is unhappy with the results of his trial is not a sufficient basis to establish such a lack of meaningful representation." People v. Malve, NYLJ, 9/20/02, p. 22, col. 2.
Therefore, for the reasons stated herein, Defendant's motion is denied.
All other arguments advanced by the parties have been reviewed and rejected by this court as being without merit.
This shall constitute the opinion, decision, and order of the Court.