Opinion
Nos. 7X037258 7X045883.
06-16-2014
The PEOPLE of the State of New York, v. Patricia SAMUELS, Defendant.
Robert T. Johnson, District Attorney, Bronx County, by Bari L, Kamlet, Esq., Assistant District Attorney, for the People. Jack G. Goldberg, Esq., for the Applicant.
Robert T. Johnson, District Attorney, Bronx County, by Bari L, Kamlet, Esq., Assistant District Attorney, for the People.
Jack G. Goldberg, Esq., for the Applicant.
Opinion
JOHN H. WILSON, J.
By motion dated November 5, 2013, Applicant moves pursuant to CPL Sec. 440.10(1)(h) to vacate her convictions in each of the above stated matters, on the grounds that her pleas were involuntary because she received ineffective assistance of counsel. Applicant asserts that her attorneys never advised her of the immigration consequences of her guilty plea in each matter.
The Court has reviewed the following; the Court files for each docket; Applicant's Motion; the minutes of the plea and sentence dated August 10, 1987 under Docket number 7X037258; the minutes of the plea and sentence dated September 11, 1987 under Docket number 7X045883, the People's Response dated April 25, 2014; the Applicant's Reply dated April 26, 2014; and the People's Sur–Reply dated May 29, 2014.
For the following reasons, the motion is decided as follows;
As to Docket number 7X037258, the motion is denied; and
As to Docket number 7X045883, Applicant's motion is hereby granted, based upon the inadequacy of the plea allocution in that matter. This docket is restored to the Criminal Court calendar for further proceedings.
STATEMENT OF FACTS
On July 26, 1987, the Applicant was arrested and charged with one count of Criminal Sale of Marijuana in the Fourth Degree (PL Sec. 221.40), a Class A misdemeanor, and Criminal Possession of Marijuana in the Fifth Degree (PL Sec. 221.10), a Class B misdemeanor under Docket 7X037258. On August 10, 1987, the Court file reflects that Applicant entered a plea of guilty to the charge of Criminal Possession of Marijuana, and received a sentence of a Conditional Discharge. The applicable surcharge was waived.
On September 9, 1987, Applicant was again arrested and charged with one count of Criminal Possession of Marijuana in the Fifth Degree under Docket 7X045883. On September 11, 1987, Applicant entered a plea of guilty to the sole charge in the docket, and was sentenced to pay a $50.00 fine. The fine was paid that same day.
To date, the Applicant has not appealed her conviction under either docket.
APPLICANT'S ALLEGATIONS
In her Affidavit, attached to her motion, regarding docket 7X037258, the Applicant asserts that when she “was arrested in the summer of 1987, I was frightened and overwhelmed by the criminal proceedings that followed. I had never been arrested before and was bewildered by being locked up and wearing handcuffs.” See, Affidavit of Applicant dated October 5, 2013, p. 2, para 6.
Applicant further asserts that when she met with her attorney after her July 26, 1987 arrest, he “assured me that pleading guilty would not have a negative immigration consequence. I accepted his advice. I pleaded guilty on August 10, 1987. Under no circumstances would I have entertained the plea had I been properly advised of the immigration consequences associated with it.” See, Affidavit of Applicant dated October 5, 2013, p. 4, para 10.
The Applicant also asserts that her attorney “never provided any advice regarding the strengths and weaknesses of my case.” See, Affidavit of Applicant dated October 5, 2013, p. 4, para 11.
Regarding docket 7X037258, “(o)n September 9, 1987, I was again arrested for possessing marijuana once again near my apartment building. Even though I was not guilty, my appointed attorney ... assured me that because it was only marijuana' accepting the plea to Criminal Possession of Marijuana ... would allow me to remain with my family in the United States.” See, Affidavit of Applicant dated October 5, 2013, p. 4, para 12.
The Applicant asserts further that “both (of my assigned attorneys) assured me that my pleading to a B misdemeanor without incarceration would not affect (my) immigration status ... neither ... suggested that I consult with a specialist in immigration law nor did they attempt to craft a plea that would afford me a chance of challenging my removal.” See, Affidavit of Applicant dated October 5, 2013, p. 5, para 13–14.
Though Applicant states that she “recently learned that the 1987 convictions mandate deportation,” she does not indicate that any immigration proceeding has been commenced against her. See, Affidavit of Applicant dated October 5, 2013, p. 5, para 15. In fact, she notes that her convictions are “potentially deportable and excludable offenses.” See, Affidavit of Applicant dated October 5, 2013, p. 8, para 26 (emphasis added).
Nonetheless, the Applicant asserts that “if I'd been advised correctly I would have rejected the plea offers and taken my chances at trial.” See, Affidavit of Applicant dated October 5, 2013, p. 9, para 26.
LEGAL ANALYSIS
(A) A Hearing in This Matter is Unnecessary.
Before addressing the merits of Applicant's motion, this Court finds that a formal hearing in this matter is unnecessary. This Court has reviewed the record of the underlying proceedings, as well as the statements of the relevant parties. As such, this Court may be “presumed to be fully familiar with all aspects of the case.” ' See, People v. Demetsenare, 14 A.D.3d 792, 793, 787 N.Y.S.2d 515 (3d Dept., 2005) citing People v. Loomis, 256 A.D.2d 808, 808–809, 683 N.Y.S.2d 306 (3d Dept., 1998), lv. den. 93 N.Y.2d 854, 688 N.Y.S.2d 502, 710 N.E.2d 1101 (1999). Therefore, no formal hearing is necessary. See, also, People v. Robetoy, 48 A.D.3d 881, 883, 851 N.Y.S.2d 297 (3d Dept, 2008).
(B) The Applicable Standard of Review for a Claim of Ineffective Assistance of Counsel.
Pursuant to CPL Sec. 440.10(1)(h), the judgment against a defendant may be vacated if said judgment “was obtained in violation of a right of the defendant under the constitution of this state or of the United States.” Clearly, the right to the effective assistance of counsel would constitute such a right. See, Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400 (1981).
Here, Applicant asserts that her convictions should be vacated in each docket based upon the violation of her right to effective counsel under “both federal and state constitutions.” See, Memorandum of Law in support of Applicant's motion, p. 2.
Under Strickland, to resolve a claim of ineffective assistance of counsel, brought as a violation of the defendant's rights under the United States Constitution, the court must engage in a two-prong analysis. The court must determine whether 1) counsel's performance was deficient, and 2) whether a defendant suffered actual prejudice as a result of counsel's deficiencies. 466 U.S. at 687, 692.
In Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (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 fell below an objective standard of reasonableness, and was a violation of the defendant's Sixth Amendment right to counsel. The Supreme Court based their ruling on the first prong of the Strickland standard. 130 S Ct at 1483.
In Chaidez v. United States, ––– U.S. ––––, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013), the Supreme Court limited its Padilla ruling to ineffective assistance of counsel claims for pleas taken after Padilla was handed down. The Supreme Court based its decision on its holding that the application of Strickland to ineffective assistance claims in this context required “a new rule.” 133 S Ct at 1108.
In so ruling, the high court reasoned that “before Padilla ... the (Supreme) Court had never held that the Sixth Amendment requires a criminal defense attorney to provide advice about matters not directly related to (a) client's criminal prosecution.” 133 S Ct at 1110.
Thus, Chaidez held that since Padilla announced a new rule, “defendants whose convictions became final prior to Padilla ... cannot benefit from its holding.” 133 S Ct at 1113.
In each docket before the Court, the Applicant was convicted in 1987. Therefore, Padilla, and the federal standard of collateral review of an ineffective assistance claim, is not applicable to this matter. See, People v. Lezama, 117 A.D.3d 752, 985 N.Y.S.2d 260, 2014 WL 1797717 (2d Dept, 2014) (“Here, the defendant's conviction became final well before the date Padilla was decided and, thus, the rule in Padilla does not apply.”); People v. Austin, 43 Misc.3d 135(A), 2014 WL 1661633 (App Term, 1st Dept, 2014).
In Medina v. United States, 2012 WL 742076, (S.D.N.Y., 2012), the Southern District refused to apply Padilla to a 1986 conviction. The Court held that the 1996 amendment of the Immigration and Nationality Act, removed “the Attorney General's power to grant discretionary relief from deportation ...'(i)f a noncitizen committed a removal offense after the 1996 effective date of these ... amendments ... removal is practically inevitable ...' “ 2012 WL 742076 at 3, citing Padilla, 130 S Ct at 1480. See, also, People v. Wilson, 37 Misc.3d 1211(A), 2012 WL 5076107 (Crim Ct, Kings Cty, 2012). Thus, a review under Padilla would not be available to the Applicant herein given that her convictions are older than 1996.
(C) The Applicable Standard of Review for the Instant Matters is the Baldi Standard.
For claims of ineffective assistance of counsel brought as violations of the New York State Constitution, the Baldi standard applies; that is, “so long as 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, the constitutional requirement will have been met.” 54 N.Y.2d at 147, 444 N.Y.S.2d 893, 429 N.E.2d 400.
“The Second Circuit, in dicta, has questioned whether the New York ineffective assistance of counsel standard is contrary to' federal law as set forth in Strickland. ” See, Scott v. Phillips, 2007 WL 2746905 (E.D.N.Y.2007), p. 8, FN 1, citing Henry v. Poole, 409 F.3d 48, 54–55, 70 (2d Cir.2005). Nonetheless, the Baldi standard of review has been upheld repeatedly by the Court of Appeals. See, People v. Benevento, 91 N.Y.2d 708, 674 N.Y.S.2d 629, 697 N.E.2d 584 (1998) ; People v. Henry, 95 N.Y.2d 563, 721 N.Y.S.2d 577, 744 N.E.2d 112 (2000) ; People v. Berroa, 99 N.Y.2d 134, 753 N.Y.S.2d 12, 782 N.E.2d 1148 (2002) ; People v. Stultz, 2 N.Y.3d 277, 778 N.Y.S.2d 431, 810 N.E.2d 883 (2004) ; People v. Caban, 5 N.Y.3d 143, 800 N.Y.S.2d 70, 833 N.E.2d 213 (2005).
Thus, each docket will be reviewed by applying the Baldi standard.
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Thus, each docket will be reviewed by applying the hBaldi standard.
(D) Prejudice as a Factor to be Established Under the Baldi Standard.
Under Baldi, “a court must examine whether counsel's acts or omissions prejudice(d) the defense or defendant's right to a fair trial.' “ See, Benevento, 91 N.Y.2d at 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584, citing People v. Hobot, 84 N.Y.2d 1021, 1024, 622 N.Y.S.2d 675, 646 N.E.2d 1102 (1995) (other citations omitted). Prejudice is a showing “that, but for counsel's errors, (the defendant) would not have pleaded guilty and would have insisted on going to trial.” See, People v. McDonald, 1 N.Y.3d 109, 115, 769 N.Y.S.2d 781, 802 N.E.2d 131 (2003), citing Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1984). See, also, People v. Valestil, 27 Misc.3d 1234(A), 911 N.Y.S.2d 695 (Crim Ct, Kings Cty, 2010)
In People v. Bautista, 33 Misc.3d 1209(A), 2011 WL 4907774 (S Ct, Bx Cty, 2011), p. 4, the Court held that under the Baldi standard, “defendant is not required to fully satisfy the prejudice test' “ since such a finding would be “effectively redundant.” To date, however, the Court of Appeals has maintained that “(w)e continue to regard a defendant's showing of prejudice as a significant but not indispensable element in assessing meaningful representation. Our focus is on the fairness of the process as a whole.” See, Stultz, 2 N.Y.3d at 284, 778 N.Y.S.2d 431, 810 N.E.2d 883.
The Court of Appeals has called its approach “flexible,” and “ultimately concerned with the fairness of the process as a whole rather than its particular impact on the outcome of the case. In that regard, we have refused to apply the harmless error doctrine in cases involving substantiated claims of ineffective assistance.” See, Benevento, 91 N.Y.2d at 713–714, 674 N.Y.S.2d 629, 697 N.E.2d 584.
Establishing prejudice is a heavy burden. In Bautista, the Court found that “there can be no prejudice as a result of counsel's alleged misadvise since (defendant) would nevertheless be facing deportation” whether he plead guilty, or was convicted after trial. 2011 WL 4907774 at 5. See, also, People v. Hernandez, 98 A.D.3d 449, 450, 950 N.Y.S.2d 268 (1st Dept, 2012), (“defendant did not establish that he was prejudiced by his counsel's inadequate advise on the deportation consequences of his guilty plea,” since “defendant decided to accept the plea ... because pleading guilty was the course most advantageous to him.”) (Sweeny, J., concurring); People v. Alonso, 37 Misc.3d 1218(A), 2012 WL 5456386 (S Ct, Kings Cty, 2012), (defendant found to have received effective assistance of counsel); People v. Quing Lin Zeng, 33 Misc.3d 1213(A), 2011 WL 5041792 (Crim Ct, N.Y. Cty, 2011) (“(D)efendant has failed to make even a prima facie showing of prejudice.”); People v. Robles–Mejia, 27 Misc.3d 1219(a), 2010 WL 1855762 (S Ct Bx Cty 2010). (“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.”)
Therefore, each docket will be reviewed with a view toward whether or not the Applicant was prejudiced by the incorrect advice she claims to have received from each of her attorneys.
(E) There is no Basis to Grant Applicant's Request for Relief as to Docket 7X037258.
In her Affidavit, attached to her motion, regarding docket 7X037258, Applicant asserts that when she “was arrested in the summer of 1987, I was frightened and overwhelmed by the criminal proceedings that followed. I had never been arrested before and was bewildered by being locked up and wearing handcuffs.” See, Affidavit of Applicant dated October 5, 2013, p. 2, para 6 (emphasis added).
A review of the Applicant's criminal history reveals that this statement is not true. The Applicant had been arrested under Docket 7X033109, for Criminal Possession of Marijuana in the Fourth Degree (PL Sec. 221.15), a Class A misdemeanor. That matter was resolved with a plea to Disorderly Conduct (PL Sec 240.20) on July 4, 1987, and payment of a $50.00 fine.
Applicant further asserts that when she met with her attorney after her July 26, 1987 arrest, he “assured me that pleading guilty would not have a negative immigration consequence. I accepted his advice. I pleaded guilty on August 10, 1987. Under no circumstances would I have entertained the plea had I been properly advised of the immigration consequences associated with it.” See, Affidavit of Applicant dated October 5, 2013, p. 4, para 10.
In his letter dated October 17, 2013, attached to Applicant's motion, the attorney who represented the Applicant at the time her plea was entered states that “while I have no independent recollection of (Applicant's) case, it was my policy then to advise all clients whose immigration status was an issue that a guilty plea could jeopardize that status.”
Since counsel does not specifically remember any discussion he had with this Applicant regarding the immigration consequences of her guilty plea, this Court will accept Applicant's uncontested allegation. Applicant is deemed to have established that she was never informed of the consequences of her guilty plea.
However, this does not equate to an acceptance by this Court that the Applicant suffered prejudice as a result of her purported reliance on her attorney's failure to provide her with proper advice.
It is important to recall that Applicant entered her plea of guilty in this matter in 1987, prior to the 1996 amendment of the Immigration and Nationality Act. Therefore, Applicant's “conviction occurred before prevailing professional norms' had come to recognize advise on immigration consequences as necessary to representation of a criminal defendant considering a guilty plea.” See, Medina, 2012 WL 742076 at 6–7 (citations omitted). See, also, People v. Floyd F., 35 Misc.3d 1215(A), 2012 WL 1414943 (Crim Ct, Kings Cty, 2012).
Further, a review of the minutes of Applicant's court appearance on August 10, 1987, which is attached to Applicant's Motion, shows defense counsel entered the Applicant's plea of guilty to a lesser charge than the top count of the Criminal Court complaint. See, plea and sentence minutes of August 10, 1987, p. 2.
The Court then instructed the People to “arraign the defendant.” Applicant stated her name, and confirmed that she spoke English. She was then asked if she understood “by pleading guilty to a B misdemeanor possession of July 26, 1987, you admit you had within your control or custody some 24 bags of marijuana.” Applicant answered “yes.” See, plea and sentence minutes of August 10, 1987, p. 2.
Applicant was asked if “anyone threatened or coerced you to plead guilty.” Applicant answered “no.” Applicant was also asked if she understood that “you have a right to a trial and hold the People to their standard of proving your guilty beyond a reasonable doubt. You have a right to cross examine witnesses. Do you know you are giving up those rights by pleading guilty?.” The Applicant answered “yes.” See, plea and sentence minutes of August 10, 1987, p. 3.
The Applicant was also given the opportunity to speak before sentence was imposed. She declined. See, plea and sentence minutes of August 10, 1987, p. 3.
“The foregoing sufficiently establishes that defendant's plea was voluntary and knowing.” People v. Brown, 126 A.D.2d 898, 901, 510 N.Y.S.2d 923 (3d Dept., 1987), app. den., 70 N.Y.2d 703, 519 N.Y.S.2d 1037 (1987). There is no evidence on the record presented that the Applicant did not understand the terms of her plea bargain. There are no deficiencies in the plea allocution or inconsistencies in the Applicant's responses. Her answers were clear and unequivocal.
The minutes of the Applicant's plea and sentence establish very clearly that the Applicant gained the benefit of a negotiated plea bargain, in which she received a sentence which avoided a conviction for a higher level charge, and a possible term of incarceration. See, People v. Bankowski, 134 A.D.2d 768, 521 N.Y.S.2d 809 (3d Dept, 1987). The heart, however, of the Applicant's allegation of prejudice is her assertion that “under no circumstances would I have entertained the plea had I been properly advised of the immigration consequences associated with it.” See, Affidavit of Applicant dated October 5, 2013, p. 4, para 10.
This statement is simply not true, since there are no immigration consequences suffered, to date, by the Applicant, as a result of her plea in this matter.
As the People have noted, Applicant “has not established that she faces deportation proceedings based upon the instant convictions alone, or at all, since she is not currently in deportation proceedings....Thus, (Applicant's) claim is not only meritless but premature” See, People's Memorandum of Law dated April 25, 2014, p. 10. In fact, Applicant notes that her convictions are “potentially deportable and excludable offenses.” See, Affidavit of Applicant dated October 5, 2013, p. 8, para 26 (emphasis added).
Thus, if there is no deportation proceeding pending against this Applicant, there cannot be any prejudice suffered by Applicant as a result of her counsel's allegedly inadequate representation. See, Floyd F., 2012 WL 1414943, at 10;People v. Burrell, 40 Misc.3d 1220(A), 2013 WL 3927862 (Crim Ct, Kings Cty, 2013), p. 5 (“this court can find no jurisdictionally authoritative cases indicating that a defendant was able to establish prejudice despite the fact that no deportation proceedings had been commenced.”) A review of the sufficiency of an Applicant's allegations of ineffective representation rests within the discretion of the judge to whom the motion is made. See, People v. Tinsley, 35 N.Y.2d 926, 927, 365 N.Y.S.2d 926 (1974). The court must review the totality of the circumstances of the case to resolve a claim of ineffective assistance of counsel. See, People v. McDonald, 296 A.D.2d 13, 17, 745 N.Y.S.2d 276 (3d Dept, 2002), aff., 1 N.Y.3d 109, 769 N.Y.S.2d 781, 802 N.E.2d 131 (2003).
Here, under the totality of the circumstances, and based upon Applicant's inability to establish any prejudice resulting from her attorney's ineffective assistance, as to docket 7X037258, the Applicant's motion is denied.
Applicant's reliance upon the recent Court of Appeals decision in People v. Peque, 22 N.Y.3d 168, 980 N.Y.S.2d 280, 2013 WL 6062172 (2013) is misplaced. While the Court held that “a non-citizen convicted of a removable crime” must be informed of the potential for deportation “by the trial court ... as a matter of fundamental fairness” (2013 WL 6062172, p. 12), the Court also stated “we have no occasion to consider whether our holding should apply to misdemeanor pleas.” 2013 WL 6062172, p. 12, FN 9. Given Applicant's failure to establish any prejudice as a result of her 1987 conviction in docket 7X037258, the holding in Peque will not be applied in this matter.
(F) Applicant Must be Allowed to Withdraw her Plea Under Docket 7X045883.
The situation is different regarding docket 7X045883. Here, the Applicant's conviction must be reversed, and the case restored to the Criminal Court calendar for further proceedings.
A review of the minutes of Applicant's court appearance on September 11, 1987, which is attached to Applicant's Motion, shows defense counsel entered Applicant's plea of guilty to the top count of the Criminal Court complaint. See, plea and sentence minutes of September 11, 1987, p. 2. However, the only question put to Applicant by the court was, “did you have an opportunity to speak to your lawyer about this plea of guilty?” to which the Applicant answered “yes.” See, plea and sentence minutes dated September 11, 1987, p. 2.
A defendant entering a plea of guilty need not make a specific admission to each and every element of the crime. See, People v. Goldstein, 12 N.Y.3d 295, 879 N.Y.S.2d 814, 907 N.E.2d 692 (2009) ; People v. Seeber, 4 N.Y.3d 780, 793 N.Y.S.2d 826, 826 N.E.2d 797 (2005). However, the court does have an affirmative obligation to inquire of the defendant some details of the factual basis for the crime to satisfy itself that a pleading defendant is actually guilty. See, People v. Gina MM, 40 N.Y.2d 593, 597, 388 N.Y.S.2d 899 (1976) ; People v. Seaton, 19 N.Y.2d 404, 280 N.Y.S.2d 370, 227 N.E.2d 294 (1967).
Further, while there is no “uniform mandatory catechism of pleading defendants,” (See, People v. Harris, 61 N.Y.2d 9, 16, 471 N.Y.S.2d 61, 459 N.E.2d 170 (1983), citing, People v. Nixon, 21 N.Y.2d 338, 353, 287 N.Y.S.2d 659, 234 N.E.2d 687 (1967) ), a court accepting a plea of guilty must make sure that the defendant has a full understanding of what a plea entails, and its consequences. See, Boykin v. Alabama, 395 U.S. 238, 244, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).
A voluntary guilty plea must reflect that a defendant knowingly and intelligently waives their right to a trial; their right to confront the witnesses against them; and their right against self-incrimination. 395 U.S. at 243. A record that is silent regarding a pleading defendant's knowledge of these rights will not overcome the presumption against the waiver of these rights by that defendant. See, People v. Rodriguez, 50 N.Y.2d 553, 557, 429 N.Y.S.2d 631, 407 N.E.2d 475 (1980). See, also, People v. Vickers, 84 A.D.3d 627, 628, 923 N.Y.S.2d 497 (1st Dept, 2011) (guilty plea vacated when defendant's plea allocution was “utterly bereft of any indication that (defendant) was made aware of the constitutional rights she was giving up.”)
In Docket 7X045883, there is no evidence on the record presented that the Applicant knowingly and intelligently waived her constitutional rights, or that there is any factual basis for the plea. Applicant, who was entering a plea of guilty to the sole charge on the docket, was only asked one question-whether she had consulted with her attorney. See, plea and sentence minutes dated September 11, 1987, p. 2. There is no discussion on the record of the underlying facts of the crime plead to; there is no discussion whatsoever of Applicant's constitutional rights.
Despite the fact that Applicant has not appealed this conviction, in the interest of justice and fundamental fairness, a plea of this extreme inadequacy cannot be allowed to stand.
Therefore, Applicant's conviction in Docket 7X045883 is vacated, and the matter is remanded to the Criminal Court of Bronx County for further proceedings.All other arguments advanced by the Applicant and the People have been reviewed and rejected by this Court as being without merit.
This shall constitute the opinion, decision, and order of the Court.