Opinion
2001KN053305
08-06-2014
The PEOPLE of the State of New York v. Stanley MOTHERSIL, Defendant.
Kenneth P. Thompson, District Attorney by Leonard Joblove, Esq., Victor Barall, Esq. and Terrence F. Heller, Esq., for the People. Appellate Advocates by Lynn W.L. Fahey, Esq. and Mark W. Vorkink, Esq., for Defendant Stanley Mothersil.
Kenneth P. Thompson, District Attorney by Leonard Joblove, Esq., Victor Barall, Esq. and Terrence F. Heller, Esq., for the People.
Appellate Advocates by Lynn W.L. Fahey, Esq. and Mark W. Vorkink, Esq., for Defendant Stanley Mothersil.
Opinion
RICHARD J. MONTELIONE, J.Defendant moves, pursuant to Criminal Procedure Law Section 440.10(1)(H), for an order vacating the judgment of conviction and sentence entered against him. On November 15, 2004, Defendant pleaded guilty to attempted third-degree assault (PL §§ 110.00/120.00[1] ). Defendant now asserts that he received inadequate assistance of counsel because he was not informed of the deportation risks at the time of his guilty plea. For the reasons stated herein, Defendant's motion is denied in its entirety.
STATEMENT OF FACTS AND PROCEDURAL
BACKGROUND
Defendant is a citizen of Haiti. He was born in Port–au–Prince on [REDACTED], and came to the United States when he was nine years old. He has remained in the United States as a lawful permanent resident since then, except for one visit to Haiti in 1993 to attend his mother's funeral.
Defendant contracted polio as a child. His doctor reported that, as a result, he has permanent neurological and muscular damage. She also reported that he may suffer from post-polio syndrome, but that she could not make that determination without further evaluation by specialists, and that should he, in fact, have post-polio syndrome, he may at some point be unable to use his arms or legs, and may have significant respiratory compromise, which could lead to an early death.
On July 2, 2001, Defendant was arrested and charged by felony complaint with two counts of Attempted Robbery in the Second Degree (PL § 110.00/160.0[1], [2] [A] ), and one count of Attempted Robbery in the Third Degree (PL §§ 110.00/160.05). On July 6, 2001, the People reduced the charges to misdemeanors. Among the reasons given by the People for reducing the charges were that the complainants had not suffered physical injuries, that this had been Defendant's first arrest, and that he did not have a prior criminal conviction. The People filed a superseding information that charged Defendant with Attempted Assault in the Third Degree (PL § 110/120.00[1] ), Menacing in the Third Degree (PL § 120.15), Attempted Grand Larceny in the Fourth Degree (PL §§ 110/155.30[5] ), and Attempted Petit Larceny (PL §§ 110/ 155.25).
On November 15, 2001, Defendant pleaded guilty to attempted third-degree assault, and in full satisfaction of the charges, received a sentence of a conditional discharge with ten days of community service. During the allocution on this plea, the court confirmed that (1) Defendant wished to plead guilty; (2) no one was forcing him to plead guilty; and (3) he understood he was giving up his right to trial and to confront witnesses against him, among other rights. At no time, however, did the court warn Defendant that there might be immigration consequences to his guilty plea, including the possibility of deportation.
This is not Defendant's only contact with the criminal justice system. On July 24, 2003, Defendant pleaded guilty to the felony charge of Attempted Robbery in the Second Degree (PL §§ 110/160.10[1] ). In satisfaction of that plea, he was promised and received a sentence of two and one-half years in prison. On March 7, 2011, he pleaded guilty in Cumberland County, Maine to Unlawful Trafficking in Scheduled Drugs (17–A M.R.S. § 1103 [1–A][A] ). On that charge he received a sentence of five years in prison, all but one year suspended, and two years of probation. He completed the unsuspended part of his sentence on June 11, 2012, but he subsequently moved to have that conviction vacated on the grounds that he had not been informed of the immigration consequences of his plea. During his allocution on the plea, he falsely told the Maine court that he was a United States citizen. Despite that falsehood, the Maine court granted Defendant's motion to vacate the judgment of conviction, finding, inter alia, that he had not been properly warned of possible immigration consequences and that there was a reasonable probability that had he been warned, he would not have pleaded guilty. Defendant has also moved, pursuant to CPL § 440.10, in Supreme Court to vacate his 2003 plea. That motion is pending.
On June 13, 2012, the Department of Homeland Security, Immigration and Customs Enforcement (“ICE”) served Defendant with a Notice to Appear, alleging that Defendant was removable from the United States as a result of his Maine conviction. After the Maine court vacated the judgment of conviction, ICE amended the Notice to Appear, charging that his New York attempted robbery conviction rendered him removable from the United States. Subsequently, the United States Immigration Court issued a final order of removal. Defendant has appealed that order.
By the instant motion, Defendant seeks to have his 2001 misdemeanor plea vacated. He argues that his conviction for attempted third-degree assault constitutes a crime involving moral turpitude (“CIMT”) for immigration purposes, and that a CIMT conviction adversely affects his ability to obtain citizenship because it makes it difficult, if not impossible, to demonstrate the “good moral character” necessary for naturalization. See 8 U.S.C. §§ 1101(f)(3) ; 8 C.F.R. § 316.10(b)(2)(i), (3)(iii). Moreover, he argues, any CIMT conviction exposes him to risk of deportation. 8 U.S.C. § 1227(a)(2)(A). He asserts that had he known these facts, he would not have agreed to plead guilty to a CIMT, and would have instead, sought to plead guilty to a non-CIMT offense.
LEGAL ANALYSIS
In 2010, the United States Supreme Court held that the Sixth Amendment requires defense attorneys to inform non-citizen clients of the deportation risks of guilty pleas. Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). A failure to do so constitutes inadequate assistance of counsel. Id. Subsequently, in Chaidez v. United States, –––U.S. ––––, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013), the Supreme Court held that Padilla does not apply retroactively to cases finally determined, and which are no longer on direct review. In 2013, the Second Department held that, under New York law, the Padilla rule is not retroactive for cases not on direct review. People v. Andrews, 108 A.D.3d 727, 970 N.Y.S.2d 226 (2d Dept.2013). Similarly, the Court of Appeals recently held that, under New York law, Padilla will not be applied retroactively to cases not on direct review. People v. Baret, 23 N.Y.3d 777, 992 N.Y.S.2d 738, 16 N.E.3d 1216, 2014 N.Y. Slip Op. 04872 (June 30, 2014).
Defendant's plea and sentencing were final nine years prior to the decision in Padilla. Under Padilla, Chaidez, and Baret, therefore, Defendant's motion would have to be denied.
It is noteworthy that in November 2013, the New York Court of Appeals held that
deportation is a plea consequence of such tremendous importance, grave impact and frequent occurrence that a defendant is entitled to notice that it
may ensue from a plea. We therefore hold that due process compels a trial court to apprise a defendant that, if the defendant is not an American citizen, he or she may be deported as a consequence of a guilty plea to a felony.
People v. Peque, 22 N.Y.3d 168, 176, 980 N.Y.S.2d 280, 3 N.E.3d 617 (2013) (Emphasis added).
Although the case at bar involves a plea to a misdemeanor rather than a felony, the potential immigration consequences are equally severe, and the due process concerns are identical. The Court, therefore, does not hesitate to extend the reasoning in Peque to cases involving misdemeanor pleas. The Court of Appeals did not consider extending its determination to misdemeanors. “Given that defendants were convicted of felonies here, we have no occasion to consider whether our holding should apply to misdemeanor pleas.” 22 N.Y.3d at 197, fn. 9, 980 N.Y.S.2d 280, 3 N.E.3d 617.
The issue is whether Peque is retroactively applicable to the instant case. The Court is cognizant of the Court of Appeals' stated “concern for congesting the courts with a multitude of motions by defendants with long-standing final convictions.” People v. Jean–Baptiste, 11 N.Y.3d 539, 544, 872 N.Y.S.2d 701, 901 N.E.2d 192 (2008), citing Policano v. Herbert, 7 N.Y.3d 588, 604, 825 N.Y.S.2d 678, 859 N.E.2d 484 (2006). Moreover, the rationale of Baret, supra, requires that Peque not be applied retroactively. This matter is only the subject of a motion under CPL § 440 inasmuch as any and all appellate issues have long been laid to rest.
According to the Court of Appeals, three factors guide the determination of retroactivity of a new principle of law. These factors are often referred to as the “Pepper/Mitchell” factors, after the cases that enumerated them: People v. Pepper, 53 N.Y.2d 213, 440 N.Y.S.2d 889, 423 N.E.2d 366, cert. denied, 454 U.S. 967, 102 S.Ct. 510, 70 L.Ed.2d 383 (1981) and People v. Mitchell, 80 N.Y.2d 519, 591 N.Y.S.2d 990, 606 N.E.2d 1381 (1992). The factors are: (1) the purpose to be served by the new rule; (2) the extent of reliance on the old rule; and (3) the potential effect on the administration of justice giving retroactive effect to the new rule.
In Baret, the Court of Appeals applied these factors to Padilla, and held that Padilla has no retroactive effect under New York law. The Court of Appeals first noted that Padilla “has nothing to do with a reliable determination of guilt or innocence,” and so the first Pepper/Mitchell factor weighed against retroactivity. 2014 N.Y. Slip Op. 04872 at 13, 23 N.Y.3d at 786, 992 N.Y.S.2d at 744, 16 N.E.3d at 1222. With respect to the second factor, the Court noted that lawyers had long relied upon the Court's prior holding in People v. Ford, 86 N.Y.2d 397, 633 N.Y.S.2d 270, 657 N.E.2d 265 (1995) in understanding their obligations to provide immigration advice. With respect to the third factor—the effect of retroactive application upon the administration of justice—the Court held that a trial court would have to make factual findings based on faded memories, and that “[s]uch considerations, coupled with the sheer volume of prosecutions disposed of by guilty plea ... weigh heavily against retroactive application of Padilla. ” Id. at 13–14, 786–87, 992 N.Y.S.2d at 744, 16 N.E.3d at 1222–23.
The same logic applies here. The only difference is that the failure of the sentencing court to supply any warnings regarding possible immigration consequences is known. But the balance of any further analysis of the second Pepper/Mitchell factor will rely on the same faded memories. Moreover, the Baret Court's weighing of the first and third Pepper/Mitchell factors are identical here. For these reasons, this Court finds that Peque does not apply retroactively. Other courts have so held. See People v. Moran, 2014 WL 2937005 (Sup.Ct., Bronx Cty. June 30, 2014) ; People v. Lovejoy, 44 Misc.3d 457, 988 N.Y.S.2d 451 (Sup.Ct., Bronx Cty.2014).
In sum, under both federal and New York law, neither Padilla nor Peque have retroactive application once a matter is no longer on direct review. The Court therefore denies Defendant's motion in its entirety
CONCLUSION
This opinion shall constitute the Decision and Order of the Court.
Ford, for the most part, is still good law. In her helpful summary of the holding in Peque, Judge Abdus–Salaam noted that a majority of the Court “reaffirms the central holding of Ford regarding the duties of a trial court and the distinction between direct and consequential consequences of a guilty plea, and we make clear that our precedent in this area is not otherwise affected by today's decision.” People v. Peque, 22 N.Y.3d 168, 176, 980 N.Y.S.2d 280, 3 N.E.3d 617 (2013).