Opinion
0089-1975
01-06-2012
The People of the State of New York v. Hopeton Gooden, Defendant,
Defendant pro se Megan Roberts Assistant District Attorney Office of the Bronx District Attorney
Defendant pro se
Megan Roberts
Assistant District Attorney
Office of the Bronx District Attorney
, J.
By motion submitted October 19, 2011, defendant moves to vacate his judgment of conviction pursuant to CPL 440.10 (1) (h). After review of the motion papers, papers on file with the court, and prior court proceedings, defendant's motion is denied.
I. Background and Procedural History
On May 15, 1975, judgment was entered against the defendant in Supreme Court, Bronx County (Loguen, J.), convicting him upon his plea of guilty to robbery in the third degree (PL 216.05). On May 15, 1975, defendant was sentenced to a maximum term of four years imprisonment.
On June 2, 1987, the United States Department of Justice Immigration and Naturalization Service issued defendant an "order to show cause, notice of hearing, and warrant for arrest of alien" that alleges he is subject to deportation from the United States pursuant to Section 1251 (a) (4) of the Immigration and Nationality Act ("INA"), (8 USC 1251 [a] [4]), as a result of his 1975 robbery conviction.
Defendant now moves to vacate that judgement of conviction pursuant to CPL 440.10 (1) (h) on the grounds it was obtained in violation of the Sixth and Fourteenth Amendments of the United States Constitution and article I, § 6 of the New York Constitution. Defendant alleges that his defense counsel failed to inform him of the immigration consequences of entering a guilty plea, and failed to file a notice of appeal on his behalf. Defendant further alleges that the trial court failed to: inform him of the elements of the crime to which he plead guilty, ascertain whether or not he understood them, determine whether or not he allocuted to facts sufficient to support the elements of the crimes charged, conduct a hearing to determine whether or not he was competent to plead guilty, and inform him of his right to appeal. Alternatively, defendant requests that an evidentiary hearing be ordered to determine whether or not the judgment should be vacated.
Defendant, a native and citizen of Jamaica, was admitted as a lawful permanent resident in 1969. On October 11, 1994, an immigration judge found defendant deportable as a consequence of having been convicted of a crime involving moral turpitude (8 USC 1251[a] [4]). Defendant requested a waiver of excludability under section 212(c) of the Immigration and Nationality Act, which was denied. Defendant appealed, and on April 3, 1996, the Board of Immigration Appeals remanded his immigration case for further proceedings. On December 11, 2001, it was ordered that defendant be deported to Jamaica, and on March 28, 2002 the Board of Immigration Appeals affirmed. Defendant was eventually deported to Jamaica on February 24, 2005.
Defendant then unlawfully reentered the United States, and on November 14, 2007, was charged in a superseding indictment with being an illegal alien in possession of firearms (18 USC 922 [g] [5], 924), possession with the intent to distribute a quantity of marijuana (21 USC 841 [a] [1]), being a felon in possession of firearms (18 USC 922 [g] [1]), and illegal reentry into the United States (8 USC 1326). Defendant was convicted after a jury trial and sentenced to a term of 327 months (27 years and three months) imprisonment. Defendant maintains that this sentence was enhanced because of his April 15, 1975, conviction.
II. Defendant's Burden to Allege Issues of Fact
CPL 440.30 (4) provides:
Upon considering the merits of [a CPL 440.10] motion, the court may deny it without conducting a hearing if . . . (b) [t]he motion is based upon the existence or occurrence of facts and the moving papers do not contain sworn allegations substantiating or tending to substantiate all the essential facts, as required by subdivision one; or . . . (d) an allegation of fact essential to support the motion (i) is contradicted by a court record or other official document or is made solely by the defendant and is unsupported by any other affidavit or evidence, and (ii) under these and all the other circumstances attending the case, there is no reasonable possibility that such allegation is true (CPL 440.30 [4] [b], [d] [i], [ii]).
A judgment of conviction enjoys presumptive regularity, and a defendant moving to vacate it bears the "burden of coming forward with sufficient allegations to create an issue of fact" (People v Session, 34 NY2d 254, 255-256 [1974]; People v Braun, 167 AD2d 164, 165 [1st Dept 1990]). The absence of an attorney's affidavit, however, by itself, is not dispositive (see People v Morales, 58 NY2d 1008 [1983]). In fact, where a defendant raises an ineffective assistance claim based on an alleged error or omission of trial counsel, an affidavit of counsel may not be required because "[t]he defendant's application is adverse and hostile to his trial attorney" (People v Radcliffe, 298 AD2d 533, 534 [2nd Dept 2002]). Not requiring an affidavit from counsel, however, does not absolve a defendant from attempting to obtain one or explain his efforts to do so (see CPL 440.30[4][b]; see also Morales, citing People v Scott, 10 NY2d 380 [1961] [failure to supply attorney's affirmation warranted summary denial of motion collaterally attacking conviction based on attorney's alleged conduct]).
Here, defendant neither provided an affidavit from his attorney nor explained his efforts to obtain one. Thus, this court must rely solely on personal affidavits from himself and his mother to support his allegations. These affidavits may entitle him to an evidentiary hearing if the allegations, when established, "could entitle the defendant to the relief sought" (People v Gonzalez, 160 AD2d 724, 725 [2nd Dept 1990]; People v Ferreras, 70 NY2d 630, 631 [1987]). The alleged facts must, however, reveal an issue to be resolved by a hearing (People v Stewart, 295 AD2d 249, 250 [1st Dept 2002]). Both affidavits state that the counsel failed to advise defendant of the possible immigration consequences but are devoid of any specific factual allegations regarding the date, location and substance of the conversations they claim to have had with the attorney. In fact, other than referring to the attorney as "Walker," whom defendant's mother privately retained, defendant fails to provide the attorney's complete name, address or telephone number. She even fails to identify the attorney's gender. It is a foregone conclusion, then, that no attempt to contact him/her was made.
This court is not insensitive to the fact that the plea defendant seeks to vacate was entered thirty-six years ago, that there are currently 222 attorneys licensed to practice law in the State of New York with the last name "Walker," or that defendant was a sixteen-year-old immigrant and high school dropout at the time. But, considering this is his motion, brought at a time of his choosing, and supported by conclusory affidavits, the attorney is the only individual from whom evidence substantiating defendant's claim can be adduced. Without further evidence to support his claim, defendant is unable to meet his burden of establishing that counsel's performance was ineffective. Accordingly, this court concludes that an evidentiary hearing would serve no purpose because there is no reasonable possibility that the allegations would be substantiated (CPL 440.30 [4] [d] [i], [ii]).
III. Ineffective Assistance of Counsel
a. Federal Standard
In order to establish ineffective assistance of counsel under the federal standard, a defendant must demonstrate both that counsel's representation fell "below an objective standard of reasonableness" (Strickland v Washington, 466 US 668, 688 [1984]), as judged by the prevailing norms of practice, and a showing of prejudice; whether or not, "but for counsel's unprofessional errors, the result of the proceedings would have been different" (Strickland at 694).
Since the performance and prejudice elements set forth in Strickland may be addressed in either order, "a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies" (Strickland at 688). "[I]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed" (Strickland at 697). Then, only after determining that the defendant has been prejudiced must the court consider counsel's performance.
I
i. Prejudice
In Padilla, the Supreme Court imposed an affirmative duty on defense counsel to provide accurate advice to a non-citizen defendant concerning the potential immigration consequences of pleading guilty (Padilla v Kentucky, 130 S Ct 1473 [2010]). Padilla gives some guidance as to the scope and nature of legal advice that courts should require of practitioners in the immigration context. Padilla, a lawful permanent resident in the United States for over 40 years, pled guilty to drug-distribution charges in Kentucky and faced deportation as a consequence of his conviction (Padilla at 1473). Padilla claimed that his counsel "not only failed to advise him of this consequence prior to entering the plea, but also told him that he did not have to worry about immigration status since he had been in the country so long" (Padilla at 1478). The Court, stating that it was "not a hard case" to conclude counsel's performance was constitutionally deficient, found that "[t]he consequences of Padilla's plea could easily be determined from reading the removal statute, his deportation was presumptively mandatory, and his counsel's advice was incorrect" (Padilla at 1477). Thus, at least where the "terms of the relevant immigration statute are succinct, clear, and explicit in defining the removal consequence[s] for . . . conviction," constitutionally, competent counsel must advise a defendant that his conviction makes him subject to mandatory deportation (Padilla at 1477).
Here, defendant pled guilty in 1975 to robbery in the third degree (PL 216.05), which made him automatically removable under Section 1227(a)(2)(A)(i) of the Immigration and Nationality Act (8 USC 1227 [a] [2] [A] [i]). An alien is deportable from the United States who "(I) is convicted of a crime involving moral turpitude committed within . . . 10 years in the case of an alien provided lawful permanent resident status . . . after the date of admission, and (II) is convicted of a crime for which a sentence of one year or longer may be imposed" (8 USC 1227 [a] [2] [A] [i]). Accordingly, as in Padilla, the "terms of the relevant immigration statute are succinct, clear, and explicit in defining the removal consequence[s] for . . . conviction" (Padilla, 130 S Ct at1477). Therefore, defense counsel had an affirmative duty to inform him of possible deportation consequences of pleading guilty.
Counsel's duty aside, defendant failed to establish that he suffered immigration-related consequences solely as a result of his alleged misadvise. The October 11, 1994, Board of Immigration Appeals decision found defendant deportable on the basis of him being convicted of crimes involving moral turpitude. In addition to the 1975 robbery conviction, their decision cited defendant's 1978 conviction for attempted criminal possession of a weapon, his 1981 federal conviction for conspiracy to commit armed bank robbery, and his 1985 conviction for reckless endangerment. Accordingly, even if defendant had not entered his 1975 guilty plea to robbery in the third degree, the remaining convictions would have subjected him to deportation.
II
Defendant's motion is based on the assertion that defense counsel's failure to advise him of the potential immigration consequences associated with pleading guilty was per se ineffective assistance. As such, he must establish that counsel's allegedly deficient conduct prejudiced him. To do so in a plea bargain context, "the defendant must show 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 (Hill v Lockhart, 474 US 52, 59 [1985]). That is, "to obtain relief a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances" (Padilla, 130 S Ct at 1485).
Defendant maintains that but for counsel's failure to advise him of the possible immigration consequences, he would not have pleaded guilty. He claims that at sixteen years of age, the idea of being deported from the United States, away from his family members residing here, would have automatically precluded him from pleading guilty. In fact, contrary to the People's claim, defendant argues he would have proceeded to trial rather than risk deportation (see Affirmation in Support of Motion: 5-6). Moreover, he maintains that had he known deportation was a possible consequence of pleading guilty, he would have pursued alternative dispositions such as seeking an adjournment in contemplation of dismissal, youthful offender status, a lesser offense, or diversion program. Defendant's mother, who retained defense counsel to represent him, states that had she been aware defendant faced deportation, she would have insisted that defendant pursue alternative options rather than pleading guilty (see Affirmation in Support of Motion, Exhibit D (Affidavit of Rosetta Johnson: 1-2).
Defendant was charged, however, with robbery in the first degree (a class B' felony) and criminal possession of a weapon in the second degree (a class C' felony). Under the 1975 sentencing structure, defendant faced a maximum term of twenty-five years imprisonment with a mandatory minimum period of eight and one-third years (1975 Penal Law § 70.00[2]-[3]). Given such exposure, defense counsel successfully negotiated an extremely favorable plea arrangement that permitted defendant to plead guilty to robbery in the third degree (a class "D" felony), in exchange for a maximum term of four years imprisonment. Significantly, the defendant offers no evidence demonstrating the likelihood that he would have been acquitted had he proceeded to trial.
Defendant further asserts that the mere chance of deportation to Jamaica would have excluded any possibility of pleading guilty, even with the risk of a lengthy prison term if convicted after trial. Defendant's mother claims that the prospect of deportation, "back to a violent and politically unstable country tottering on the brink of economic collapse would definitely have precluded any thought of pleading guilty" (see Affirmation in Support of Motion, Exhibit D [Affidavit of Rosetta Johnson: 2]). Such claim is belied by the fact that two years before defendant's guilty plea, he voluntarily departed the United States with his father to Jamaica for the purpose of attending school. He remained in Jamaica for three months, did not attend school, and returned to the United States. If, as Ms. Johnson claims, the thought of deportation to Jamaica was so frightening, it unlikely she would have permitted him to leave. And, if the defendant was willing to return to Jamaica with the plan of attending school there, it is more unlikely he would have decided to risk exposing himself to twenty-five years imprisonment when, by pleading guilty, he would receive four years and return to Jamaica at the age of 20.
ii. Performance
Having failed to demonstrate prejudice, it is unnecessary for this court to determine whether counsel's performance fell below an "objective standard of reasonableness" (Strickland, 466 US at 687-88; see Benevento, 91 NY2d 708 [1998]). Nevertheless, it is worth noting that in the context of a guilty plea, a defendant receives meaningful representation when he obtains "an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel" (People v Ford, 86 NY2d 397, 404 [1995]). Once a defendant acquires a favorable plea bargain, then, "it cannot be concluded that defendant was denied effective assistance of counsel" (People v Black, 247 AD2d 238, 238 [1st Dept 1998]).
As indicated, defense counsel procured an exceptionally favorable plea arrangement that netted defendant a four-year term of imprisonment when he was exposed to maximum indeterminate term of eight and one-third to twenty-five years. In light of such an advantageous plea offer, and the sheer lack of evidence of counsel's ineffectiveness, defendant undoubtedly received meaningful representation (Ford, 86 NY2d at 404; Black, 247 AD2d at 238).
b. New York Standard
Under the New York standard, a defendant is not required to "fully satisfy the prejudice test of Strickland" (People v Caban, 5 NY3d 143, 152 [2005], quoting People v Stultz, 2 NY3d 277, 284 [2004]). Rather, the only "question is whether the attorney's conduct constituted egregious and prejudicial error such that defendant did not receive a fair trial" (Benevento, 91 NY2d at 713). A defendant need not prove that the outcome of the case would have been different but for such errors, rather only that he was deprived of a fair trial overall (Caban, 5 NY3d at 155-56). Perfect representation, therefore, is not required (Benevento, 91 NY2d at 712).
Like the performance prong in Strickland, however, New York law provides that "a defendant must show that [her] attorney's performance fell below an objective standard of reasonableness" (Rosario v Ercole, 601 F3d 118, 124 [2d Cir 2010]). Under Article I, §6, of the New York State Constitution, success of an ineffective assistance of counsel claim rests on whether "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 Henry, 95 NY3d 143, 152 [2005], quoting People v Baldi, 54 NY2d 137, 164-67 [1981]). "The sufficiency of defendant's factual allegations as to prejudice should be evaluated with reference to the face of the pleadings, the context of the motion and defendant's access to information" (People v McDonald, 1 NY3d 109, 115 [2003]).
Defendant received a reduced sentence because of counsel's skill and effort in obtaining a favorable disposition. Simply stated, there is no reasonable possibility that defendant would have risked trial, conviction, a lengthy term of imprisonment and subsequent deportation, where a maximum term of four years imprisonment was available. Accordingly, defendant cannot "convince th[is] court that a decision to reject the plea bargain would have been rational" had he been fully informed of the immigration consequences of his plea (Padilla, 130 S Ct at 1485). Defendant is therefore unable to establish prejudice under either the state or the federal standards.
V. Counsel's Failure to File a Notice of Appeal
Defendant claims that defense counsel abandoned him after sentencing, and provided ineffective assistance because he did not: file a notice of appeal, inform him of the right to appeal, inform him of the proper procedures and time limitations, and advise him of the right to appointed appellate counsel. It does not, however, appear that these claims are the primary purpose of his motion. Rather, it is that he now believes his 1975 conviction resulted in the enhancement of the 27-year sentence he is currently serving.
While there is no time limit on filing a CPL 440 motion, and the doctrine of laches does not bar an action at law (People v Reed, 273 AD2d 882 [4th Dept 2000]; but see People v Lee, 273 AD2d 882 [1st Dept 1995]), courts have denied without a hearing motions brought after a prolonged or excessive delay (People v Friedgood, 58 NY2d 467 [1983][motion to vacate judgment of conviction denied without a hearing where defendant waited more than three years to file it and failed to show that he used due diligence in adducing the facts underlying the motion]; (People v Nixon, 21 NY2d 338 [1967][motion to vacate judgment of conviction denied without a hearing where defendant waited more than ten years to file it]).
Regarding the delay in asserting a claim seeking to vacate a judgement of conviction, the Court of Appeals stated, "[i]n stale cases, defendants have all to gain by reopening old convictions, retrial being so often an impossibility. These are factors to consider in determining the validity of his assertions; albeit, if they are made out, justice requires that they be explored in a hearing." Given that defendant has had substantial contact with the criminal justice system since his 1975 conviction, it is untenable for this court to accept that 36 years later, defendant first realized his attorney allegedly failed to file a notice of appeal or inform him of the right to do so. Defendant's assertions are not, therefore, made out. Consequently, he is not entitled to a hearing.
IV. Trial Court's Failure to Inform
Defendant alleges that the trial court did not: inform him of the elements of the crime to which he plead guilty and did not ascertain whether he understood them, determine that a factual basis for the elements of the crime was admitted, hold a hearing to determine his competency to plead guilty, or inform him of his right to appeal.
These claims are record based, and should have been raised on direct appeal (People v Cuadrado, 2007 NY Slip Op 9905, 2 [NY 2007]; People v Degondea, 3 AD3d 148, 157 [1st Dept 2003]). Pursuant to CPL 440.10(2)(c), a CPL 440.10 motion cannot be used in place of a claim that should have been brought on direct appeal. This applies, however, when "no such appellate review or determination occurred owing to the defendants unjustifiable failure to take or perfect an appeal during the prescribed period" (CPL 440.10[2][c]).
Defendant was charged and convicted two years after re-entering the United States. A 16-year old immigrant high school dropout and no previous contact with the criminal justice system, defendant claims he was unfamiliar with the New York court system. While arguably accurate, his mother, who admittedly had regular communications with retained counsel, never once inquired what, if any, additional proceedings could be taken. True, defendant may have been justified in not timely filing or perfecting a direct appeal of these issues (see People v Kwok, 51 AD3d 814, 815 [2d Dept 2008]; People v Hamilton, 2011 NY Slip Op 32044U, 3 [NY Sup Ct July 13, 2011][defendant not barred from raising claims on a motion to vacate judgment which could have been raised on direct appeal if defendant demonstrates why not raising them on direct appeal was justifiable]). For this court, however, it is axiomatic that the defendant was not justified waiting 36 years before realizing that he had the right to appeal and that the court may not have advised him of it.
VI. Conclusion
For the reasons stated above, this court finds that the defendant received effective assistance at the plea and sentence proceedings, and further finds unpersuasive defendant's claim that defense counsel failed to advise him of the right to appeal, the proper procedures and time limitations of effecting it, and the right to appointed appellate counsel. Defendant's motion to vacate his judgment of conviction pursuant to CPL 440.10 (1) (h) is therefore denied in allrespects.
This constitutes the decision and order of the court.
ENTER
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Richard Lee Price, J.S.C.
While not the subject of defendant's motion, defendant also pled guilty on February 15, 1978, to attempted criminal possession of a weapon in the third degree (PL 110/265.02) (Bronx County Indictment 1886-1977), and was sentenced to a term of three years imprisonment with a mandatory minimum period of eighteen months. On May 22, 1979, the Appellate Division, First Department, affirmed that conviction (see People v Gooden, 70 AD2d 788 [1st Dept 1979]).
In 1980, defendant sustained another conviction, this time in federal court, of conspiracy to commit armed bank robbery, although the details of it and the imposed sentence were not available (see United States v Gooden, 340 Fed Appx 895 (4th Cir 2009)(holding that conviction properly constituted a violent felony offense for sentencing purposes).
On March 1, 1985, defendant entered a guilty plea to reckless endangerment in the first degree (PL 120.25) (Suffolk County Indictment 655-1983) and was sentenced to a term of four years imprisonment with a mandatory minimum period of two years. On June 26, 1989, the Appellate Division, Second Department, affirmed that conviction (see People v Gooden, 151 AD2d 773 [2nd Dept 1979]).
On June 18, 1997, defendant was convicted of criminal possession of a weapon in the second degree (PL 265.03) and reckless endangerment in the first degree (PL 120.25)(Suffolk County Indictment 1648-1996), and sentenced to a term of ten years imprisonment with a mandatory minimum period of eight and one-half years. The Appellate Division, Second Department, affirmed that conviction (see People v Gooden, 279 AD2d 533 [2nd Dept 2001]).