Opinion
NA 28780/06.
Decided June 6, 2011.
Honorable Kathleen Rice, District Attorney, Mineola, NY.
Law Offices of George A. Terezakis, Mineola, NY.
Defendant's motion for an order vacating a judgment of conviction and its underlying plea of guilty, both entered (Maron, J.) March 23, 2007, is granted. The felony complaint is restored, the matter is referred back to Criminal Term Part 9P, and Defendant is directed to appear with counsel in that part on July 11, 2011.
Defendant originally stood accused, by felony complaint filed November 22, 2006, of criminal possession of marijuana in the first degree ( see Penal Law § 221.30), a class C felony, on account of an incident that occurred on November 21, 2006. At his November 22, 2006 arraignment, the court (Miller, J.) conditionally released Defendant, then 22, to the supervision of the Department of Probation, and adjourned the case to Part 9, which thereafter transferred the case to County Court ( see CPL 180.30). On January 25, 2007, the case was returned to Part 9 of this court ( see CPL 180.40), and adjourned to March 20, 2007. On March 20, 2007, the court (Maron, J.) revoked Defendant's conditional release status, evidently because of his failure to participate in therapy as directed by the Department of Probation, and because of his arrest on February 18, 2007 for assault in the third degree ( see Penal Law § 120.00). The court fixed bail at $25,000 bond, $15,000 cash and adjourned the case for three days, to March 23, 2007, for "disposition." Defendant did not post bail. According to the transcript of a joint plea proceeding conducted on March 23, 2007, Nicholas Fox was arrested with Defendant, also for felony possession of marijuana on account of the incident of November 21, 2006, and both Defendant and Mr. Fox were represented from the outset by Barry Turner, Esq. During the course of the single plea proceeding conducted on March 23, 2007, the court (Maron J.), pursuant to CPL 180.50, converted the felony complaint pending against Defendant, and the felony complaint pending against Mr. Fox, to accuse each of misdemeanor possession of marijuana. No supporting deposition demonstrating that scientific tests were performed on the substance forming the basis of the prosecution is annexed to the converted document — designated a misdemeanor complaint — filed against Defendant. Moreover, by the factual part ( see CPL 100.15) of the document, the complainant ( see CPL 100.15) attests only that Defendant "possessed" more than 10 pounds of a "greenish brown leafy substance believed to be marijuana," and that "the arresting detective who recovered the evidence . . . believes the substance to be marijuana based on his years of training as a police officer and detective, its appearance, color, odor and texture and its packaging which is commonly used by drug dealers." But while Mr. Fox pleaded guilty to the lesser charge of disorderly conduct ( see Penal Law § 240.20), Defendant pleaded guilty to violating Penal Law § 221.15 — possessing more than two ounces of marijuana — the crime of which he then stood accused. The court sentenced each to a conditional discharge and the maximum fine permissible for the offense to which each pleaded guilty.
Neither Defendant nor Mr. Fox waived the right to be prosecuted by information when arraigned on the converted accusatory instruments immediately before entering their pleas of guilty. During the course of the joint plea allocution, the court asked Defendant and Mr. Fox, each, if he "consent[ed] to one attorney representing both of you." Each answered "yes." The court then asked "[t]here is no conflict of interest in any way?" Each responded "no." Each answered "yes" when the court next asked if he had discussed "this with your attorney before pleading guilty today." Following questioning about educational background and mental status — Defendant stated he has a fifth grade education; Mr Fox completed high school — the court asked Defendant if he understood that he was pleading guilty to a crime, that he would have a criminal record, and that the crime is punishable by up to a year in jail, a fine, or a combination of both, to which Defendant responded "yes." Defendant also answered "yes" when the court asked if he understood that, by pleading guilty, he was also waiving his right to a trial and his right to appeal. Oddly, when the court asked "do you wish to plead guilty to a crime," Defendant and Mr. Fox each answered "yes." Ultimately, Defendant admitted that on November 21, 2006, he possessed marijuana, the weight of which was not specified. Mr. Fox admitted that he behaved in a disorderly manner on that date. As noted above, the court sentenced each to a conditional discharge and a fine. Other than noting his appearance, joining in the People's application to reduce the charge, waiving a reading of the new charge, and, at the conclusion of the proceeding, addressing Defendant's bail status, Mr. Turner stated nothing on the record. Included in the court file is a certificate of relief from civil disabilities, granted by Hon. Edward Maron, based on an application Defendant made on November 6, 2008, by which he specifically sought a certificate that will "relieve from any bars the prevents me from traveling [sic]."
By notice dated August 18, 2010, Defendant made application to vacate the judgment of conviction and underlying plea entered on March 23, 2007. Asserting that Mr. Turner affirmatively misrepresented the effect that his guilty plea would have on his immigration status, that Mr. Turner was burdened with a conflict of interest, and that Mr. Turner did not properly advise him about that conflict, Defendant based his application on ineffective assistance of counsel. The People formally opposed the application, which was submitted to me on November 29, 2010. By order dated January 19, 2011, I granted the application to the extent of setting the matter down for a hearing, which was conducted before me on March 8, 2011. Following submission of post-hearing memoranda, the matter was finally submitted to me on April 1, 2011. By letter dated June 2, 2011, sent on notice to the People, Defendant brought to my attention a decision dated May 24, 2011 issued by the Board of Immigration Appeals upholding a ruling that an alien who violates an order of protection "is deportable."
At the hearing, Defendant took the stand on his own behalf. He testified that he was born on May 26, 1984 in Jamaica; that he came to America on December 16, 2002; that he was admitted to this country as a legal permanent resident; that he stopped going to school in Jamaica when he was 17; that, in November, 2006, he was living at 527 Hawthorne Street, Uniondale, New York; that it is a private home; that his girlfriend, Lavern Sterling, owned that home; that several tenants, including a child, lived in the downstairs basement; that three or four other adults lived upstairs; that he and his girlfriend — his fiancé — lived "on the other side" of the house; and that Mr. Fox did not live there. He further testified that in 2006, the neighborhood around Hawthorne Street was a "Crips and Bloods neighborhood;" that "it's a very bad neighborhood, a lot of robberies in the neighborhood;" that, as of November, 2006, he had been living on Hawthorne Street for a year and a half; that during that time he heard about "guns, robbery, shooting, even on the block;" and that he knew of people who had been robbed and shot. He next testified that, on the morning of November 21, 2006, he was outside, raking leaves; that he got a call on his cell phone from Nicholas Fox; that he had met Mr. Fox at a party; that he and Mr. Fox are both "DJ's;" that Mr. Fox wanted to come over to "to talk about some DJ stuff with me;" that Mr. Fox came over about "10:30, eleven o'clock;" that they were in the back yard; that Mr. Fox asked to used the bathroom; that he directed him into the house; that, while he remained in the back yard, raking leaves, Mr. Fox went into the house; that he heard someone behind him saying "motherfucker, don't move;" that he turned and saw a gun; that a "Chinese lady" wearing "regular clothes" was holding the gun; that he ran; that he did so because he was afraid; that he saw no badge; that the woman did not identify herself as police; that he jumped over a fence; that "I got up the block and was coming back around the block;" that a black van pulled up; that "the guys in the van" said "police, don't move;" that they were carrying weapons; that he surrendered; and that police handcuffed him and took him away.
Defendant next testified that, up to that point, he had not seen any marijuana; that he had never ordered marijuana; that he had never possessed marijuana; and that he had not asked anyone to bring marijuana to his house. He then testified that he was taken to a "lock-up station, I guess;" that he saw Mr. Fox the next morning, in court; that he and Mr. Fox were "downstairs in the bull pen to come up to see the judge;" that Mr. Fox was also in custody; that he asked Mr. Fox what happened; that Mr. Fox told him that somebody knocked at the front door and rang the bell; that Mr. Fox also told him that when he looked out, he saw "a delivery guy;" that Mr. Fox said the "delivery guy" was wearing a FedEx or UPS uniform; that Mr. Fox said "he called to me, but I didn't hear him;" that Mr. Fox told him he opened the door; that Mr. Fox told him he "signed for the box;" and that "as soon as he turned away the guy said don't move' and just arrested him from there." Defendant next testified that he never saw the box Mr. Fox was talking about; that he did not "order" anybody to mail him marijuana; and that he did not even know whether there was marijuana in that box. Defendant then testified that he first met Mr. Turner in court when he was arraigned; that he (Defendant) was in front of the judge at the time; that "after he [Mr. Turner] represent Fox and then they're walking away and the judge call my name and I go up and Fox tell [Mr. Turner], that' guy'." He further testified that he had never met Mr. Turner before; that Mr. Turner stood in and arraigned him before the judge; that Mr. Turner did not talk to him and Mr. Fox about representing both of them; that Mr. Turner never discussed with him the terms of the representation; that Mr. Turner never told him how much money he was going to charge; that he never had a discussion with Mr. Turner during which Mr. Turner he used the term "conflict of interest;" that Mr. Tuner did discuss the fact that he would be representing both him and Mr. Fox; that he (Defendant) said okay;" that he never paid Mr. Turner; that "I give Fox the money to give him; that "the first time I give Fox $50 money to give him and then after I think I give him $500;" that he never signed a retainer agreement; that he went to court with Mr. Turner seven or eight times; that they talked about the case "[o]nly when we're at court;" that he never met Mr. Turner at his office; that he never met with him anywhere outside of the court building where Part 9 is; and that he never talked with Mr. Turner about possible defenses. He next testified that there came a time when Mr. Turner told him that the People had made an offer; that Mr. Turner said "guys, they give us a deal;" that Mr. Turner said this to him and to Mr. Fox, who was also present; and that he said this to them "[r]ight before the court, the door before getting into the courthouse. We're outside the door." When asked what Mr. Turner said, Defendant testified "[he] said the deal is you're going to plead to a violation. It's like a parking ticket." He further testified that he then asked Mr. Turner whether the plea would affect his green card status; that he asked because "I was concerned about the status;" and that he had heard of instances where people were deported because they had pleaded guilty to a crime. He next testified that this occurred on the day he got remanded; that he was in front of the judge again that same week; that when "they" brought him in front of the judge, he understood he was going to be pleading guilty; that he thought he would be pleading guilty to a violation; that Mr. Turner was there; that Mr. Fox was also there; and that he (Defendant) "was standing right behind, right there with my cuff on right behind the bar." He acknowledged that during the plea allocution, he stated knew he was pleading guilty to a misdemeanor, and he testified that the first time he heard that he was pleading guilty to a crime was during the plea allocution; that he proceeded to plead guilty because he was "following what my lawyer told me;" and that he trusted his lawyer. He next testified that he and Mr. Turner never talked about the evidence against him; that Mr. Turner never stated whether the People had tested the marijuana; that Mr. Turner never asked him if he knew about the marijuana; that Mr. Turner never talked with him about the Grand Jury; and that Mr. Turner never explained about his right to a trial or how a trial would work.
Defendant next testified that, on March 17, 2009, he was returning from a two-week trip to Jamaica, where he had traveled to be a DJ at a party, when "they take me off the line;" that "the immigration . . . take me to a room and they process me to a computer;" that "they take out my green card and my passport;" that "they said you got a marijuana charge in criminal court which is affecting immigration;" that "[t]hey said [y]ou're facing deportation;" that he was surprised because "I get a piece of paper from the judge [a certificate of relief from civil disabilities] saying no bars from traveling or working;" and that, he would not have traveled if he knew that he could be detained and deported. He further testified that he hired an immigration lawyer; that he explained to that lawyer the background of this case and how he came to plead guilty; that the attorney confirmed that his plea of guilty in this case rendered him deportable; that his immigration attorney sent him to his present attorney in this case; that his present lawyer in this case explained what "conflict of interest" means; that had he known before he entered the courtroom that he was pleading guilty to a crime and Mr. Fox was pleading guilty to a violation, he would not have agreed to the plea; that Mr. Turner never suggested that it might be in his best interests to hire his own lawyer to advise him separately from Mr. Fox; that Mr. Turner never talked to him about suppressing evidence; and that if he had known that his plea of guilty would "make him deportable," he would not have pleaded guilty.
On Defendant's cross-examination, the People suggested, but did not establish, that the package police delivered to 527 Hawthorne Street, Uniondale, New York on November 21, 2006 was addressed to "Tracy Webb." They did elicit from Defendant, who testified that he was not aware that the package was addressed to "Tracy Webb," that he is the only person living in that house on November 21, 2006 with the last name "Webb." He also testified on cross-examination that Mr. Fox was at his house only once before November 21, 2006; that he was there for "DJ'ing;" that he and Mr. Fox hang out "only when we have a party [to DJ];" that as of November, 2006, they had seen each other "twenty, thirty times;" that Mr. Fox is the person who paid Mr. Turner for his services; that Mr. Fox "just told me the money to pay;" that this occurred after the arraignment; and that "I don't even know an attorney was coming [to the arraignment]." He acknowledged that when he pleaded guilty in this case, he had another case pending against him; that it was an assault case; that he was represented by "Legal Aid;" that he paid a $100 fine; that he does not "remember exactly what happened to that case;" that no order of protection was issued; that he had no cases against him now; that there was one other case against him that it involved "criminal contempt;" that Mr. Turner represented him on that case; and that he was arrested for criminal contempt after initiation of deportation proceedings but that "I didn't start to go to court yet." Defendant further testified on cross-examination that it did not occur to him during the allocution, when he acknowledged he was pleading guilty to a crime, that he "might be in the same position as all the other people [he knows] who have been deported;" that he did not notice when he was taking the plea that he was pleading guilty to something different than Mr. Fox until "[l]ike after way down;" that Mr. Turner "didn't explain anything to us;" that after each court appearance all that was said was what date to come back; and that he never asked how much jail time he would do. When the Assistant District Attorney asked him how many days he spent in jail on this case, Defendant answered "[t]his case where I spend three days in jail is because of the Step Program, the Judge give me the Step Program." He further testified on cross-examination that he was incarcerated on the other pending case for one day at a separate time; and that he would have stayed in jail in order to defend himself at trial in this case. When the Assistant District Attorney asked how long he would have stayed in jail, he answered "[w]hatever time you guys give me; six months, a year."
Nicholas Fox was the next witness to testify. He did so on Defendant's behalf. He testified that he and Defendant "play music together;" that they work together as disk jockeys; that he had known Defendant "a couple of years" before November, 2006; that on November 21, 2006, he went to Defendant's house; that Defendant was in the backyard "cleaning [up] some leaves;" that he went inside to use the bathroom; that as he was returning to the back yard, a delivery man came and rang the doorbell; that the delivery man was in uniform; that it was a FedEx uniform; that he (Mr. Fox) opened the door; and that "I proceeded to like shout to Oneil, but I guess he didn't hear me being that he was in the backyard." He then testified that the delivery man asked if he lived there; that he answered "[n]o, I don't live here;" that he said "[t]he owner of the residence is in the back;" that the delivery man said "[w]ell, I have a package, so you could just sign it, just sign here';" that "I just scribbled something;" that "as I gave him back his note-pad, then there was [sic] officers;" and that they "handcuffed me right then and there." He next testified that he never opened the box; that he never even touched the box; that he was arrested and "taken away;" that he was arraigned the next day; that Barry Turner represented him; that Mr. Turner had never represented him before; that he asked Mr. Turner to represent Defendant as well; that he met with Mr. Turner between the date he was arraigned and the date they first appeared in Part 9; that Defendant was not there; that Mr. Turner spoke to the two of them together when they first appeared in Part 9; that he said "he feel it's a case that we could, we could win and it shouldn't be any biggy;" that Mr. Turner did not talk to him about a conflict of interest; that they went to court four to five times; that he never had a discussion with Mr. Turner about going to trial before pleading guilty; that he never had a discussion with Mr. Turner about the Grand Jury; and that there was never a discussion about suppression of evidence. When asked if Mr. Turner advised him that he had reached an agreement with the District Attorney's office, Mr. Fox answered "[n]o, he told me that — I mean, he just kept saying it wasn't a biggy and the most that could come out of it is a violation." He then acknowledged that there did come a time when Mr. Turner did tell him that he could end this case by pleading guilty to a violation; that Defendant was there; that Mr. Turner "addressed both of us;" that "he was speaking to both of us;" that Mr. Turner said "we could take a guilty plea . . . to a fine. And then I asked him Fine?' What to you mean by a fine.' He said it's nothing. It's like a parking ticket'." Mr. Fox next testified that Defendant asked Mr. Turner whether this could cause him any trouble with immigration; that he remembered "because that was one of his like biggest hang-ups I guess because of his status in the states;" and that Mr. Turner said [n]o] it's like a violation. It's nothing.' As a matter of fact, he said [i]t's like a parking ticket.' That, I remember him specifically saying that."
On cross-examination, Mr. Fox acknowledged he did not remember certain things about the plea allocution, but he testified that he would have remembered if Mr. Turner had told him he was getting a different offer than Defendant, and that "I don't remember what I pled guilty to. I mean — all I remember I was pleading guilty, because after he explained everything to me he said [i]t's no biggy. It's like a violation. You're going to pay a fine." He further testified that his friend, Michael Connor, paid for Mr. Turner's services; that Mr. Turner had represented another friend; that Mr. Connor loaned him the money to pay Mr. Turner; that Mr. Connor did not pay the fee on Defendant's behalf; that he paid Defendant's share of the fee; that Defendant paid him back afterwards; that he never asked Defendant if he wanted to be represented by Mr. Turner; that his wife contacted Mr. Turner while they were in custody, awaiting arraignment; and that it was his wife who asked Mr. Turner to represent both of them.
On redirect examination, with some probing from defense counsel about his memory, Mr. Fox testified that the conversation about the terms of the plea occurred on the day they took the plea, rather than the day Defendant's bail status was revoked, but he testified that he has no doubt that the conversation where Mr. Turner told him and Defendant they would be pleading guilty to a violation "like a parking ticket" took place, and that he clearly remembers that Mr. Webb asked Mr. Turner about whether the plea would "affect him with immigration."
The next and final witness to testify was Barry Turner. He did so on the People's behalf. He testified that he was admitted to the New York bar in 1968; that he was an assistant district attorney in Kings County from 1986 to 1972; that he has been a criminal defense attorney since 1972; that he practices only state and federal criminal defense law; that a friend of Mr. Fox and Defendant retained him to represent them in a marijuana case; that he reviewed the case with Defendant; that, after conferencing the case in Part 9, he had a discussion with Mr. Fox and Defendant; that he does not recall whether he had this discussion with them in the courtroom; that the People's offer was that Mr. Fox, who was visiting the premises, would be offered a violation, and that Defendant, who fled the premises and was chased by police several blocks before he was apprehended, was offered a misdemeanor; and that the reasons the People gave for the differing offers was that the premises were Defendant's, that he had a pending case, and that there was a consciousness of guilt. Mr. Turner further testified that he explained the "differentiation" between the offers, and that "I also explained to them their Gomberg rights in terms of conflict of interest, having the same lawyer represent both of them." He next testified that he did not remember during which meeting this occurred, but that "I explained that because they are both being charged with possession of the same contraband, that there's an inherent conflict of interest for one attorney to represent both of the defendants and that the court would explain that to them and if they wished me to represent them despite the conflict, they'd have to tell the court that they would be waiving those rights." When asked if either of them indicated he did not understand what he was explaining, Mr. Turner answered, "[n]o, I'm very careful to make sure that my clients understand their rights and what's being offered and I did that in this case." When asked if he ever equated "any plea deals to pleading guilty to a violation like a parking ticket," he answered "no" and he testified that he never said anything to Mr. Webb about pleading to an offense like a parking ticket. When asked if he had any recollection about whether he discussed the possibility of deportation with Mr. Webb, he answered "I don't have an independent recollection as to whether I discussed immigration ramifications." He testified that "I absolutely know that I did not tell him he would not be deported. I represent a — a great part of my practice is the Jamaican community. I've represented Jamaicans and other Caribbean people from the Caribbean Islands for 40 years and I'm well aware of the ramifications, immigration ramifications. I just can't recall whether I had that discussion with him, but absolutely I would never tell anybody if they were pleading guilty to a misdemeanor that it would not impact on their immigration status." He testified that he advised Defendant of his right to go to trial; that he tells his clients that they always have the right to appeal; that an appeal was not at issue at the time; and that "my client was interested in [the plea] because he was being offered a fine." When asked whether Defendant expressed a desire to get out of jail, Mr. Turner responded "[y]es, I think, I think it was communicated that he would be released that same day." When asked if he discussed the original charges with Defendant, he answered "[y]es, I explained to . . . both of them that they were charged with felonies, that this is what's known as a control delivery case. I told them what the issues were in a control delivery case. I told them what the weaknesses of the control delivery case are and in [Defendant's] case he had the additional problem of flight and consciousness of guilt which could be raised at trial, but I discussed the ramifications of a trial and that they were facing felony charges." He further testified that, at the time of the plea, he did not have "any knowledge of [Defendant's] immigration status;" that Defendant did not tell him he was from Jamaica; that he subsequently represented Defendant in a case involving domestic violence that resulted in a plea to attempted criminal contempt in the second degree; and that he was aware during the course of that representation that Defendant was facing deportation.
On cross-examination, Mr. Turner testified that he and Defendant never had a discussion about Defendant's immigration status; that in March 2007, he was not aware that in 1996, Congress had significantly changed the law regarding immigration consequences for criminal convictions; that he was not aware of the consequences regarding criminal convictions other than that a person who is not a United States citizen can be deported for crimes of moral turpitude; that he was aware that Defendant has an accent; that he thought he was Jamaican; that he was unaware of and did not ask about his immigration status; that in negotiating the disposition, he did not take Defendant's immigration status into account; that he had the conversation with Defendant and Mr. Fox about a conflict of interest "in court;" that he does not remember when that occurred; that he was "satisfied that I had communicated with [Defendant] what the conflict of interest was;" and that Defendant "was still desirous of me representing him and Mr. Fox." He next testified that, before March, 2007, he had never taken any classes or attended any programs regarding the immigration consequences of criminal convictions; that he never reviewed any texts dealing with the immigration consequences of criminal convictions; that the People made their plea offers to Defendant and Mr. Fox "on the day they took the plea;" that he met with Defendant and Mr. Fox together to explain the plea offer; that the conversation took place in the hallway outside the courtroom; that he discussed with Mr. Fox what a violation was; that he told Defendant he was pleading guilty to a crime; and, when asked what Defendant had to say about it, that "I think he was more interested in the fact that he was getting a fine." He further testified that he does not remember whether he told Defendant that his plea would result in deportation; that the offer made "was the best offer that I was given to either defendant and no other offers were made. If we had refused it, it would have been held for the Grand Jury." Finally, he testified that he did not know whether, if Defendant had pleaded guilty to possessing less than 30 grams, deportation could be avoided; that he did try to convince the People to offer the same plea to Defendant as was offered to Mr. Fox; that the People refused; that he did not at that point suggest to Defendant that he hire another attorney; that the People would not "split" the plea offers; that "I don't think we discussed Grand Jury presentation at that point;" that he did not discuss with the Defendant the reason he ran on the date of the underlying incident; and that he did not explain to Defendant that, before he pleaded guilty, he could testify before the Grand Jury.
By their post-hearing memorandum, the People urge that Mr. Turner is the only credible witness who testified at the hearing, that the record demonstrates that Defendant understood what he was pleading guilty to, that he understood and waived any conflict of interest, and that getting out of jail rather than whether he would be deported was his main concern. They also urge that "the extremely advantageous nature of Defendant's plea calls into question" Defendant's claim that if counsel had properly advised him, he would not have pleaded guilty and would have proceeded to trial. They point to his arrest on a domestic matter that led to revocation of his bail status in this case, and urge that "there was a reasonable possibility that Defendant would have remained confined during the remainder of the pre-trial proceedings and during the pendency of the trial," thus providing him with the incentive to plead guilty. They also posit that the "plea deal was so advantageous that, even after Defendant became aware of the deportation proceedings against him, he subsequently chose to retain Mr. Turner to represent him on yet another criminal matter."
By his post-hearing memorandum, Defendant urges that the record establishes that Mr. Turner mistakenly advised him about the consequences of his plea, that, his assertions to the contrary notwithstanding, Mr. Turner was unfamiliar with immigration law as it existed on 2007, and, citing Padilla v. Kentucky ( ___ US ____ [March 31, 2010]), that, since Mr. Turner did not so much as ask Defendant what his immigration status was, his assistance was as a matter of law ineffective. Noting that the People have made no mention of any proof of Defendant's actual guilt, and given the weak nature of the case itself, rejection of the plea offer the People made by one who was properly advised is objectively reasonable. He also points to the inherent conflict under which Mr. Turner labored because of his dual representation of him and Mr. Fox, and asserts that a zealous advocate not burdened with the conflict would have counseled him not to plead guilty. Addressing questions I put forward about whether Defendant's other legal difficulties also trigger deportation, thus potentially rendering moot that he is prejudiced in that regard by the plea entered here, Defendant submits the transcript of a plea proceeding conducted on November 23, 2010, when Defendant pleaded guilty to attempted criminal contempt in the second degree ( see Penal Law §§ 110, 215.20). Defendant also by his memorandum comes forward with argument and citations indicating that this conviction would not trigger a deportation proceeding, although, as noted above, on June 2, 2011, Defendant brought to my attention a recent determination indicating that violation of an order of protection is a deportable offense. He urges that, in any event, his deportability on another offense is not properly before this court, that that matter rests with the jurisdiction of the United States Immigration Court, and that it would not be appropriate for me to avoid making a determination, given the clear showing of ineffectiveness, simply because some other conviction "may trigger deportability."
I have reviewed, and take judicial notice of, the court file concerning Defendant's arrest in 2007 that was one of the triggers of the revocation of his bail status in this case ( see Casson v. Casson, 107 AD2d 342, 486 NYS2d 191 [1st Dept. 1985]). That review reveals that, on February 18, 2007, Defendant was accused of assault in the third degree ( see Penal Law § 120.00), that he was released on bail during the pendency of the action, that, on November 13, 2007, he pleaded guilty to harassment as a violation ( see Penal Law § 240.26), that he was on that date sentenced to a conditional discharge and a $200 fine, which he paid, that the court (Alexander, J.) vacated a temporary order of protection issued in favor of Lavern Sterling, and that the court did not issue a permanent order of protection. I have reviewed, not only the plea minutes Defendant submits, but also the court file in a matter concerning his 2009 arrest, noted above, for criminal contempt in the second degree ( see Penal Law § 215.50), the case, because Defendant retained Mr. Turner to represent him again, to which the People point as a claimed demonstration that Mr. Turner's representation was effective in this case. My review of this court file reveals that the court (Janowitz, J.) issued a temporary order of protection in favor of Lavern Sterling in yet another matter, apparently now sealed, that Defendant was accused of violating that order of protection, that he was released on bail during the pendency of the prosecution, that on November 23, 2010, he pleaded guilty to attempted criminal contempt in the second degree, a class B misdemeanor, and that he admitted that, notwithstanding the existence of a "stay away" order of protection, he on September 10, 2009 was in close proximity to Lavern Sterling. The court (Fischer, J.) made a commitment that he would not be sentenced to jail, and on January 24, 2011, the court (Fischer, J.) sentenced Defendant to one year of probation.
As I noted in my order dated January 19, 2011, in order to prevail on an application to vacate a judgment of conviction on account of the ineffective assistance of counsel, a defendant must demonstrate that his or her attorney's professional services were deficient — that they fell below an objective standard of reasonableness — and that he or she is thereby prejudiced — i.e., that absent the deficiency, the result would have been different ( see Strickland v. Washington, 466 US 668; see also Hill v. Lockhart, 474 US 52). Where the services rendered involve negotiating a plea, the defendant must satisfy the prejudice component by demonstrating that there is a reasonable probability that, but for counsel's errors, he or she would not have pleaded guilty and would have insisted on going to trial ( see Hill v. Lockhart, supra).
As I also noted in the order dated January 11, 2011, the United States Supreme Court recently made it clear that not only does affirmatively misinforming a client about the immigration consequences of conviction premised on a guilty plea constitute ineffective assistance of counsel, so, too — assuming, obviously, that the defendant is not a citizen — does failing to render any advice whatsoever on that topic ( see Padilla v. Kentucky, supra). The Appellate Term recently ruled that the holding in Padilla should be applied retroactively ( see People v. Nunez, ___ Misc 3d ___ [App Term, 2d Dept., December 15, 2010]), thus making that ruling applicable here. Moreover, every defendant is entitled to zealous, conflict-free representation by someone single-mindedly devoted to his or her best interests ( see People v. Ortiz, 76 NY2d 652, 5673 NYS2d 20 [1990]), and taking on representation that will burden the attorney with conflicting loyalties also constitutes ineffective assistance ( see DR 1-105; see also People v. Lloyd, 51 NY2d 107, 432 NYS2d 685). Where a defendant demonstrates the existence of an actual conflict of interest, prejudice can be presumed ( see Strickland v. Washington, supra; cf. People v. Harris, 99 NY2d 202, 753 NYS2d 437;, People v. Ortiz, supra; People v. Recupero, 73 NY2d 877, 538 NYS2d 234; and see People v. Gomberg, 38 NY2d 307, 379 NYS2d 769).
While the People are dismissive of the testimony of Defendant and Mr. Fox, I find their testimony essentially credible. Moreover, even if Mr. Turner did not affirmatively misinform Defendant of the immigration consequences of his plea, it is clear that, at best, he was silent on the subject. Against the backdrop of Mr. Turner's candid admission that, in March, 2007, he was unaware that Congress had in 1996 significantly changed the law regarding the mandatory immigration consequences resulting from certain convictions beyond those involving "moral turpitude" — most notably convictions stemming from possession-of-more-than-30-grams-of-marijuana and possession-of-a-controlled-substance charges ( see Padilla v. Kentucky, supra) — coupled with his similarly candid admission that, even though he thought Defendant was Jamaican, he did not ask Defendant about his immigration status, and that that status did not enter into his considerations when he was negotiating with the People, or, tacitly, when advising Defendant to accept their offer, I must find that he did convey to both Defendant and Mr. Fox — whom he essentially dealt with jointly and who each acknowledged during the perfunctory plea allocution that he was pleading guilty to a crime — that the only real consequence of each of the pleas was payment of a fine, i.e., that both pleas were "no biggy." Moreover, I am disturbed by what Mr. Turner acknowledges is the "inherent" conflict of interest under which he labored, a conflict that became more acute when the People presented him with "no split" offers compelling one of two defendants to plead guilty to a misdemeanor so that the other could plead guilty to a violation. And my concerns are not assuaged by Mr. Turner's without-inquiry acceptance of the People's rationale for the differing offers ( cf. People v. Adeola , 51 AD3d 811 , 857 NYS2d 704 [2d Dept. 2008]), most notably the claim that Defendant exhibited consciousness of guilt by running from someone in "regular clothes" who was pointing a gun at him in his crime-ridden neighborhood and who did not announce herself as a police officer.
That Defendant was in this case deprived of the effective assistance of counsel is clear, a fact that does not retroactively disappear merely because Defendant later retained Mr. Turner, whom he had trusted, to represent him in another matter. Indeed, the real issue to be determined upon this hearing is whether Defendant was prejudiced by the ineffectiveness of his representation. I conclude that he was.
Although the People blithely characterize Defendant's plea agreement with them as "extremely advantageous," they do not bother to address Defendant's claim of actual innocence. Neither do they so much as suggest that they have proof that Defendant "possessed" a box — probably not outwardly packaged in a manner "commonly used by drug dealers," notwithstanding the pro forma assertions of the accusatory instrument — which he never saw or touched and which they all but acknowledge was not addressed to him, simply because it was delivered to premises where he and several other unrelated adults lived ( cf. People v. Reisman, 29 NY2d 278, 327 NYS2d 342; People v. Thomas, 291 AD2d 462 [2d Dept. 2002]). Nor do they suggest they were prepared to proceed, either immediately to the Grand Jury, or, within the time prescribed by CPL 180.80, with a felony examination if the offer were rejected. What they do suggest is that Defendant, incarcerated by Judge Maron on March 20, 2007, would have, and knew he would have, remained in jail awaiting trial if he had rejected the plea offer, upon which suggestion they premise their arguments that Defendant's decision to plead guilty was "reasonable," and that the circumstances surrounding the plea give the lie to his claim that if he had known about its immigration consequences, he would not have pleaded guilty. It is my view, however, that the circumstances surrounding the plea demonstrate precisely the opposite.
As the United States Supreme Court has itself recognized, being able to remain in the United States is often more important to a defendant than any potential jail sentence ( see Padilla v. Kentucky, supra). In this case, although Defendant was incarcerated on the day he entered his plea of guilty, I conclude that, since Judge Maron, upon revoking Defendant's conditional-release status, adjourned the case for "disposition" for only three days, he did so to briefly punish Defendant for violating the conditions of his at-arraignment release. Since any attorney single-mindedly devoted to Defendant's bests interests would have made an appropriate application for adjustment of Defendant's bail status if he elected to proceed to trial, and since Defendant made bail on his other pending cases, there is no support for the People's speculation that Defendant would have remained in jail awaiting trial if he rejected their plea offer. Furthermore, the chance that Defendant would be sentenced to any significant jail time if convicted of the original charge of criminal possession of marijuana in the first degree is remote, and the probability that he would be sentenced to probation without jail is high ( cf. Penal Law §§ 60.01, 60.04), whereas, it appears, the immigration consequence — automatic removal — is the same whether Defendant were convicted of the original felony charge laid against him, or of the misdemeanor possession-of-marijuana charge to which he pleaded guilty ( see Padilla v. Kentucky, supra). These circumstances alone demonstrate that it is at least reasonably likely that, had Mr. Turner properly advised him about the immigration consequence of his misdemeanor plea, Defendant would have rejected the offer and insisted on going to trial ( cf. People v. Cristache , 29 Misc 3d 720 , 907 NYS2d 833 [Crim Ct, Queens County 2010, Zayas, J.]). Indeed, given the paucity of real, direct evidence of Defendant's guilt, not only would rejection of the plea offer have been rational ( see Padilla v. Kentucky, supra), it would have been prudent.
Turning, finally to the question of whether Defendant's other, now-resolved, legal difficulties also have adverse immigration consequences so as to render his claims of prejudice in this regard moot, Defendant has, as noted above, come forward with a recently decided Board of Immigration Appeals case which suggests that his conviction for attempted criminal contempt in the second degree may subject him to removal. But apart from the fact that the conviction challenged here subjects Defendant to the more dire consequence of automatic removal ( see Padilla v. Kentucky, supra; cf. People v. Cristache, supra), so as to keep his so-called Padilla claim alive, Defendant has raised another issue which, standing alone, warrants vacatur of the plea and judgment, i.e., the inherent, and ultimately impossible conflict of interest burdening Mr. Turner, who also represented Mr. Fox.
The record before me demonstrates that, while he actually conferred at least once with Mr. Fox, alone, outside of court, Mr. Turner never met with Defendant alone, and that he always had his discussions with him in the presence of Mr. Fox, in court, where conversations are often hurried and somewhat public. Indeed, there is no indication that Mr. Turner even consulted with Defendant in "the pens." The record also demonstrates that it was only through Mr. Fox that Mr. Turner received payment for his services to Defendant. The record thus at least suggests that Mr. Turner regarded Mr. Fox as his primary client, even as it demonstrates that he regarded the disparate legal positions of his two clients as essentially the same, and that he conveyed that sameness to both of them. Because the People here insisted that their offer to Mr. Fox of a plea to a non-criminal offense was conditioned on Defendant's acceptance of a plea that gave him a criminal record — a consequence that has lasting adverse effects, even for those who are not subject to deportation — Mr. Turner could not possibly single mindedly represent either of them without compromising his obligations to the other. I thus conclude that there was an actual conflict of interest, and that the conflict infected Defendant's plea of guilty. Moreover, the People's assertions to the contrary notwithstanding, the perfunctory inquiry conducted on an apparently defective accusatory instrument ( see People v. Kalin, 12 NY3d 225, 878 NYS2d 653 during the equally perfunctory plea allocution does not demonstrate either that Defendant understood the nature of the conflict, or that he knowingly waived it. I therefore grant Defendant's motion as set forth above.
This constitutes the decision and order of the court.
So Ordered.