Neither the People, nor the Defense, offer any statement from this attorney.

In June 2000, Defendant was charged with Criminal Possession of Marijuana in the Fourth Degree (PL Sec. 221.10), a Class B misdemeanor, and a related charge. The next day, Defendant entered a plea of guilty to the above-stated charge and received a sentence of one year of probation. A surcharge in the amount of $120.00 was also imposed.

A Kings County Criminal Possession of Marijuana attorney said that defendant has not appealed her conviction in this matter.

Before addressing the merits of Defendant’s Motion, the 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, the Court may be “presumed to be fully familiar with all aspects of the case.'” Therefore, no formal hearing is necessary.

Defendant asserts she received ineffective assistance of counsel, which caused her plea to be involuntary since defense counsel “did not ask me any questions about the incident or my immigration status.” Defendant states that she “would not have taken the plea if my attorney had informed me of my alternatives and the consequences of taking the plea I did not understand that the probation sentence would have resulted in removal proceedings.”

Pursuant to CPL Sec. 440.10(1)(h), the judgment against 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.

Under a jurisprudence, to resolve a claim of ineffective assistance of counsel, the court must engage in a two-prong analysis. The court must determine whether counsel’s performance was deficient, and whether a defendant suffered actual prejudice as a result of counsel’s deficiencies.

A review of the sufficiency of a Defendant’s allegations of ineffective representation rests within the discretion of the judge to whom the motion is made. The court must review the totality of the circumstances of the case to resolve a claim of ineffective assistance of counsel.

In another case, the New York State Court of Appeals followed the two prong test and ruled that an attorney’s failure to properly advise a defendant of the immigration consequences of his guilty plea could be the basis for a claim of ineffective assistance of counsel. However, while such a failure “falls below an objective standard of reasonableness,” the Court denied Defendant’s application on the grounds that he failed to show “that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.”

Likewise, 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 standard.

It should be noted that the Supreme Court remanded a case for a review of whether or not the defendant was prejudiced by his counsel’s error.

To date, the New York Court of Appeals has yet to directly adopt said jurisprudence. However, New York’s lower courts have applied it to circumstances similar to those presented here. In fact, there is appellate authority for the retroactive application of this case.

One question does arise as to whether the case’s retroactive effect extends as far back as 2000, the year in which Defendant was convicted in this matter. For the following reasons, this Court will apply it only to cases that are decided after the 1996 amendment of the Immigration and Nationality Act.

In another case, the Southern District of New York refused to apply the case 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'”. Since the 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…(t)he rule announced cannot reach back further than the laws and conditions that dictated it.”

Defendant in this matter was convicted in 2000, after the 1996 amendment of the Immigration and Nationality Act. Therefore, the controlling jurisprudence is applicable to this matter.

Turning to the analysis necessary under the first prong, Defendant asserts that her defense counsel at the time she entered her guilty plea “did not ask me any questions about the incident or my immigration status.” Neither the People, nor the Defense, offer any statement from this attorney.

Thus, the Court will accept Defendant’s uncontested allegation. Defendant is deemed to have established that she was never informed of the consequences of her guilty plea. Defendant has therefore established the first prong of the Strickland test – her counsel’s performance fell below minimum standards of competent representation. However, Defendant fails to establish the second prong – that she suffered prejudice as a result of her reliance on her attorney’s failure to provide her with proper advice.

A review of the minutes of Defendant’s court appearance, which is attached to Defendant’s Motion, shows that the People initially offered Defendant a plea to the charge and 15 days jail. After hearing some of the facts regarding Defendant’s arrest, the Court offered Defendant a plea to the charge and probation. At this point, Defense Counsel entered Defendant’s plea of guilty to the top charge of the Criminal Court complaint.

Defendant accepted this plea even after her attorney stated “I have advised her that the more reasonable sentence for her is the 15 days jail advised her not to takes probation. She wishes, however, to proceed with the probation sentence.” The Court followed up on Defense Counsel’s statement, and asked the Defendant “do you understand what your lawyer just said, that she thinks, given the fact that you have been arrested several times recently, that you run the risk of facing a 90 day jail sentence if you mess up with probation? Do you understand what I’m saying?” Defendant replied “Yes, sir.”

The Court then instructed Defendant that her plea was to “criminal possession of marijuana in the fifth degree, a class B misdemeanor . Do you wish to do that?” the Defendant answered “yes, sir.” Defendant was also advised “you will have a criminal record as a result of this plea,” to which the Defendant also answered “yes, sir.”

Defendant was asked if she understood that by her plea, “you give up your right to trial, right to confront witnesses, right to remain silent, your right to have a laboratory report in this case and other rights you may have in connection with this case? Do you understand that?” Defendant answered “yes.”

Defendant was also asked if anyone had forced her to plead guilty. She answered “no, sir,” to that question. Defendant was then asked if she was “entering this plea of your own free will?” Defendant answered “yes, sir” to that question.

“The foregoing sufficiently establishes that defendant’s plea was voluntary and knowing.” There is no evidence on the record presented that Defendant did not understand the terms of her plea bargain. There are no deficiencies in the plea allocution or inconsistencies in Defendant’s responses. Her answers were clear and unequivocal. Thus, the minutes of Defendant’s plea and sentence establish very clearly that Defendant gained the benefit of a negotiated plea bargain, in which she received a sentence which avoided a possible term of incarceration.

Further, Defendant is no stranger to the criminal justice system. Though this matter represents her first criminal conviction, she has had contact for marijuana related charges prior to this case.

At her arraignment in this matter, Defendant was offered a plea to the charge and 15 days jail by the People. When the Court offered the Defendant a non-jail sentence, Defendant’s counsel entered the plea on her behalf. Counsel offered this plea only after she stated, “I have advised (the Defendant) that the more reasonable sentence for her is the 15 days jail advised her not to takes probation. She wishes, however, to proceed with the probation sentence.”

It is significant to note that the Court then acted to confirm Defense Counsel’s statement, and asked the Defendant “do you understand what your lawyer just said, that she thinks, given the fact that you have been arrested several times recently, that you run the risk of facing a 90 day jail sentence if you mess up with probation? Do you understand what I’m saying?” Defendant replied “Yes, sir.”

Under these circumstances, Defendant was not prejudiced in any way by her attorney’s shortcomings. In fact, the record shows that “defendant was … solely motivated to plead guilty in order to avoid – at all cost – a …prison term.”

Therefore, under the totality of the circumstances, and Defendant’s failure to establish prejudice due to her attorney’s ineffective assistance, under the second prong of Strickland, Defendant’s motion is denied.

Not every person in possession of illegal substance were always guilty of a crime. Sometimes, they were only in framed up by police cooperatives. Here in Stephen Bilkis and Associates, our King County Marijuana Possession Defense attorneys will defend these innocent individuals from being prosecuted to a crime they are not guilty of commission. We also have our Kings County Criminal lawyers for other concerns. Contact us now to receive a reliable advice from our skilled lawyers.