Opinion
No. SCI 1887/05.
08-18-2014
The PEOPLE of the State of New York v. Anurys POLANCO, Defendant.
ADA Amy Boddorff, Office of the Special Narcotics Prosecutor, New York, for the People. Jorge Guttlein, Esq., Jorge Guttlein & Associates, New York, for the Defendant.
ADA Amy Boddorff, Office of the Special Narcotics Prosecutor, New York, for the People.
Jorge Guttlein, Esq., Jorge Guttlein & Associates, New York, for the Defendant.
Opinion
RICHARD M. WEINBERG, J.
Defendant was originally charged with the B felony of Criminal Sale of a Controlled Substance in the Third Degree (PL § 220.39[1] ) and the B felony of Criminal Possession of a Controlled Substance in the Third Degree (PL § 220.16 [1] ) based upon defendant's sale of cocaine to an undercover officer as well as the recovery of additional amounts of cocaine from defendant's person. On June 8, 2005, defendant pled guilty under a Superior Court Information to the lesser charges of Attempted Criminal Possession of a Controlled Substance in the Third Degree (PL § 110/220.16[1] ), a C felony and Criminal Sale of a Controlled Substance in the Fifth Degree (PL § 220.31), a D felony. The agreed upon split sentence of ninety days in jail and five years of probation was imposed on July 19, 2005.
Defendant now moves to set aside this 2005 judgment. He alleges that he received ineffective assistance of counsel under the standards articulated in Padilla v. Kentucky, 130 S Ct 1473 (2010), because his attorney failed to properly advise him of the immigration consequences of his plea and such failure has prejudiced him.
To prevail on an ineffective assistance of counsel claim, defendant must show that counsel's performance was deficient, that is, it was unreasonable under the prevailing professional norms at the time of representation. Defendant must also show that this deficient performance prejudiced the defendant. Strickland v. Washington, 466 U.S. 668 (1984) ; People v. McDonald, 1 NY3d 109 (2003). Failure to establish either deficient performance or prejudice is fatal to defendant's motion. Under the New York Constitution, a defendant is entitled to meaningful representation. In the context of a guilty plea, a defendant has been afforded meaningful representation when he receives an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel. People v. Ford, 86 N.Y.2d 397 (1995).
As noted above, a defense counsel's performance is to be evaluated under the prevailing norms at the time of representation. Padilla, decided in 2010, makes clear that professional norms now require that a defense attorney advise his client on the immigration consequences of a plea. Padilla, because it announced a “new rule” of law, does not have retroactive effect under the principles set out in Teague v. Lane (489 U.S. 288 [1989] ) and People v. Eastman (85 N.Y.2d 265 [1995]. Consequently, Padilla does not apply to collateral challenges to convictions which became final prior to the Padilla decision. Chaidez v. United States, ––– S.Ct. ––––, 2013 WL 610201 (2013) ; People v. Verdejo, ––– AD3d ––––, 967 N.Y.S.2d 729 (1st Dept., 2013).
Prior to Padilla, the immigration consequences of a plea were considered collateral and, absent affirmative mis-advice, the failure to advise a defendant of those immigration consequences neither rendered counsel's performance deficient nor made the plea involuntary. The gravamen of this motion is that Plea Counsel's purported advice that defendant “could” be deported rather than “would” be deported amounts to affirmative mis-advice as to the immigration consequences of the plea.
While Defense Counsel sets out in his Affirmation much legal information which he alleges Plea Counsel did not provide to the defendant, Defense Counsel fails to provide the Court with either an affidavit from Plea Counsel or an affidavit from defendant himself concerning the details of what advice the defendant did actually receive. Defense Counsel does note in his Reply that Plea Counsel “contacted our office and stated that he disagrees with our contentions”. Even assuming the truth of the unsupported allegation in the motion papers that Plea Counsel advised the defendant that he “could” rather than “would” be deported, such advice hardly amounts to an affirmative misrepresentation. To the contrary, such advice was an accurate statement of the law. See People v. Argueta, 46 AD3d 46 (2nd Dept, 2007). As pointed out by the Court in People v. Navas (40 Misc.3d 1240[A] [2012] ), defense counsel “cannot be expected to accurately predict the result of a future removal proceeding in a different forum and jurisdiction”.
Defendant's position is further undermined by the facts of his own case. Defendant pled guilty in 2005. It was not until 2012 that defendant was served with a Notice to Appear by the Department of Homeland Security. This was precipitated by defendant's re-entry into the United States at JFK Airport following a trip outside the United States. Had defendant not subjected himself to the scrutiny of Immigration Officials by traveling outside the United States, he might never have been served with a Notice to Appear. Additionally, this Notice to Appear, issued more than a year ago, has never ben filed with the Immigration Court. Such filing, according to defendant's motion papers, has been “held in abeyance” due to “significant humanitarian concerns”, namely, defendant's ill-health. Whether the Notice to Appear will ever be filed with the Immigration Court is impossible to predict with certainty. These facts clearly support the accuracy of the advice allegedly given by Plea Counsel that defendant “could” be deported.
The defendant fails to meet his burden to show that his attorney provided him with constitutionally deficient advice where “the record demonstrates that the defendant was advised that removal was a possible consequence of his plea and he was not misinformed to the contrary”. People v. Galan, 116 AD3d 787, (2nd Dept, 2014). Defendant's plea occurred in 2005. Counsel's performance at the time of the plea comported with the then prevailing professional norms. See People v. Ford, 86 N.Y.2d 397 (1995) ; People v. McDonald, 1 N.Y.2d 109 (2003). The People's case was strong and defendant faced many years in prison. Defense counsel negotiated a highly favorable disposition on defendant's behalf. Defendant received the meaningful, effective representation to which he was entitled.
Since defendant has failed to establish that counsel's performance was deficient, the Court need not reach the issue of prejudice and need not hold a Picca hearing. See People v. Picca, 97 AD3d 170 (2nd Dept., 2012). Were the Court to reach the issue of prejudice, the Court would note that the plea and sentencing minutes in this case provide compelling proof—separate and apart from any advice he may have received from Counsel—that the defendant entered his plea with full knowledge that by doing so he risked deportation.
Before allowing the defendant to enter a guilty plea, the Court thoroughly allocuted the defendant. During the plea proceedings the following colloquy took place among the Court, Plea Counsel and the defendant:
THE COURT: Are you a citizen of the United States?
THE DEFENDANT: Nah.
THE COURT: You are not. This may have immigration consequences if you arenot a citizen, and it could be grounds for deportation, possibly.
Do you understand that?
THE DEFENDANT: Yes.
THE COURT: What country are you from?
THE DEFENDANT: Dominican Republic.
THE COURT: Are you fully aware of the situation, sir?
THE DEFENDANT: Yes.
(PLEA COUNSEL): We discussed that.
THE COURT: Do you still wish to go forward with the plea.
THE DEFENDANT: I do.
A few weeks later, after imposing the agreed upon sentence, the sentencing Court stated the following:
If what you did is true, and you were studying for your GED while incarcerated, it looks to me like you are trying to turn your life around and I hope that is the case. If that is the case and if you end up not being deported you should take advantage of all the opportunities probation offers.
Do you understand?
The defendant replied: “Yes”.
The Court's warning at the plea, as well as the Court's comment at sentencing, clearly apprised defendant that “the consequences of his guilty plea extended to his immigration status”. People v. Diaz, 92 AD3d 413 (1st Dept, 2012). In this case, as in Diaz, “nothing in the Court's allocution misleadingly suggested that defendant would not be deported as a result of pleading guilty”. (Diaz, supra, at 414). In light of the plea and sentencing minutes, even if Plea Counsel's performance had been deficient, defendant would be “hard-pressed” to establish that his attorney's performance prejudiced his defense, a necessary element under Strickland. See United States v. Bhindar, 2010 WL 2633858 (SDNY 2010).
Defendant's motion to vacate judgment pursuant to CPL 440.10 is hereby denied.
This constitutes the decision and order of the Court.