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CPL 440.30 (4)

A Suffolk Criminal Lawyer said that, by motion submitted October 19, 2011, defendant moves to vacate his judgment of conviction pursuant to CPL 440.10 (1) (h). On May 15, 1975, judgment was entered against the defendant in Supreme Court, Bronx County, convicting him upon his plea of guilty to robbery in the third degree (PL 216.05). On May 15, 1975, defendant was sentenced to a maximum term of four years imprisonment.

On June 2, 1987, the United States Department of Justice Immigration and Naturalization Service issued defendant an “order to show cause, notice of hearing, and warrant for arrest of alien” that alleges he is subject to deportation from the United States pursuant to Section 1251 (a) (4) of the Immigration and Nationality Act (“INA”), (8 USC 1251 [a] [4]), as a result of his 1975 robbery conviction.

A Suffolk Felony Lawyer said that, defendant now moves to vacate that judgment of conviction pursuant to CPL 440.10 (1) (h) on the grounds it was obtained in violation of the Sixth and Fourteenth Amendments of the United States Constitution and article I, § 6 of the New York Constitution. Defendant alleges that his defense counsel failed to inform him of the immigration consequences of entering a guilty plea, and failed to file a notice of appeal on his behalf. Defendant further alleges that the trial court failed to: inform him of the elements of the crime to which he plead guilty, ascertain whether or not he understood them, determine whether or not he allocated to facts sufficient to support the elements of the crimes charged, conduct a hearing to determine whether or not he was competent to plead guilty, and inform him of his right to appeal. Alternatively, defendant requests that an evidentiary hearing be ordered to determine whether or not the judgment should be vacated.

A Suffolk Criminal Lawyer said that, defendant, a native and citizen of Jamaica, was admitted as a lawful permanent resident in 1969. On October 11, 1994, an immigration judge found defendant deportable as a consequence of having been convicted of a crime involving moral turpitude. Defendant requested a waiver of excludability under section 212(c) of the Immigration and Nationality Act, which was denied. Defendant appealed, and on April 3, 1996, the Board of Immigration Appeals remanded his immigration case for further proceedings. On December 11, 2001, it was ordered that defendant be deported to Jamaica, and on March 28, 2002 the Board of Immigration Appeals affirmed. Defendant was eventually deported to Jamaica on February 24, 2005.

A Suffolk Marijuana Possession Lawyer said that, defendant then unlawfully reentered the United States, and on November 14, 2007, was charged in a superseding indictment with being an illegal alien in possession of firearms (18 USC 922 [g] [5], 924), possession with the intent to distribute a quantity of marijuana (21 USC 841 [a] [1]), being a felon in possession of firearms (18 USC 922 [g] [1]), and illegal reentry into the United States (8 USC 1326). Defendant was convicted after a jury trial and sentenced to a term of 327 months (27 years and three months) imprisonment. Defendant maintains that this sentence was enhanced because of his April 15, 1975, conviction.

The issue in this case is whether defendant’s motion to vacate that judgment of conviction pursuant to CPL 440.10 (1) (h) on the grounds it was obtained in violation of the Sixth and Fourteenth Amendments of the United States Constitution and article I, § 6 of the New York Constitution should be granted.

CPL 440.30 (4) provides: Upon considering the merits of [a CPL 440.10] motion, the court may deny it without conducting a hearing if (b) the motion is based upon the existence or occurrence of facts and the moving papers do not contain sworn allegations substantiating or tending to substantiate all the essential facts, as required by subdivision one; or (d) an allegation of fact essential to support the motion (i) is contradicted by a court record or other official document or is made solely by the defendant and is unsupported by any other affidavit or evidence, and (ii) under these and all the other circumstances attending the case, there is no reasonable possibility that such allegation is true.

A judgment of conviction enjoys presumptive regularity, and a defendant moving to vacate it bears the “burden of coming forward with sufficient allegations to create an issue of fact”. The absence of an attorney’s affidavit, however, by itself, is not dispositive. In fact, where a defendant raises an ineffective assistance claim based on an alleged error or omission of trial counsel, an affidavit of counsel may not be required because “the defendant’s application is adverse and hostile to his trial attorney”. Not requiring an affidavit from counsel, however, does not absolve a criminal defendant from attempting to obtain one or explain his efforts to do so.

Here, defendant neither provided an affidavit from his attorney nor explained his efforts to obtain one. Thus, this court must rely solely on personal affidavits from himself and his mother to support his allegations. These affidavits may entitle him to an evidentiary hearing if the allegations, when established, “could entitle the defendant to the relief sought”. The alleged facts must, however, reveal an issue to be resolved by a hearing. Both affidavits state that the counsel failed to advise defendant of the possible immigration consequences but are devoid of any specific factual allegations regarding the date, location and substance of the conversations they claim to have had with the attorney. In fact, other than referring to the attorney as “Walker,” whom defendant’s mother privately retained, defendant fails to provide the attorney’s complete name, address or telephone number. She even fails to identify the attorney’s gender. It is a foregone conclusion, then, that no attempt to contact him/her was made. There was no arraignment for any charge of assault.

This court is not insensitive to the fact that the plea defendant seeks to vacate was entered thirty-six years ago, that there are currently 222 attorneys licensed to practice law in the State of New York with the last name “Walker,” or that defendant was a sixteen-year-old immigrant and high school dropout at the time. But, considering this is his motion, brought at a time of his choosing, and supported by conclusory affidavits, the attorney is the only individual from whom evidence substantiating defendant’s claim can be adduced. Without further evidence to support his claim, defendant is unable to meet his burden of establishing that counsel’s performance was ineffective. Accordingly, this court concludes that an evidentiary hearing would serve no purpose because there is no reasonable possibility that the allegations would be substantiated (CPL 440.30 [4] [d] [i], [ii]).

In order to establish ineffective assistance of counsel under the federal standard, a defendant must demonstrate both that counsel’s representation fell “below an objective standard of reasonableness”, as judged by the prevailing norms of practice, and a showing of prejudice; whether or not, “but for counsel’s unprofessional errors, the result of the proceedings would have been different”

Since the performance and prejudice elements set forth in Strickland may be addressed in either order, “a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies” (Strickland at 688). “[I]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed” (Strickland at 697). Then, only after determining that the criminal defendant has been prejudiced must the court consider counsel’s performance.

Defendant’s motion is based on the assertion that defense counsel’s failure to advise him of the potential immigration consequences associated with pleading guilty was per se ineffective assistance. As such, he must establish that counsel’s allegedly deficient conduct prejudiced him. To do so in a plea bargain context, “the criminal defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial. That is, “to obtain relief a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances”.

Defendant maintains that but for counsel’s failure to advise him of the possible immigration consequences, he would not have pleaded guilty. He claims that at sixteen years of age, the idea of being deported from the United States, away from his family members residing here, would have automatically precluded him from pleading guilty. In fact, contrary to the People’s claim, defendant argues he would have proceeded to trial rather than risk deportation.

Moreover, he maintains that had he known deportation was a possible consequence of pleading guilty, he would have pursued alternative dispositions such as seeking an adjournment in contemplation of dismissal, youthful offender status, a lesser offense, or diversion program. Defendant’s mother, who retained defense counsel to represent him, states that had she been aware defendant faced deportation, she would have insisted that defendant pursue alternative options rather than pleading guilty.

Having failed to demonstrate prejudice, it is unnecessary for this court to determine whether counsel’s performance fell below an “objective standard of reasonableness”. Nevertheless, it is worth noting that in the context of a guilty plea, a defendant receives meaningful representation when he obtains “an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel”. Once a defendant acquires a favorable plea bargain, then, “it cannot be concluded that defendant was denied effective assistance of counsel”.

As indicated, defense counsel procured an exceptionally favorable plea arrangement that netted defendant a four-year term of imprisonment when he was exposed to maximum indeterminate term of eight and one-third to twenty-five years. In light of such an advantageous plea offer, and the sheer lack of evidence of counsel’s ineffectiveness, defendant undoubtedly received meaningful representation.

Defendant received a reduced sentence because of counsel’s skill and effort in obtaining a favorable disposition. Simply stated, there is no reasonable possibility that defendant would have risked trial, conviction, a lengthy term of imprisonment and subsequent deportation, where a maximum term of four years imprisonment was available. Accordingly, defendant cannot “convince this court that a decision to reject the plea bargain would have been rational” had he been fully informed of the immigration consequences of his plea (Padilla, 130 S Ct at 1485). Defendant is therefore unable to establish prejudice under either the state or the federal standards.

Defendant alleges that the trial court did not: inform him of the elements of the sex crimes to which he plead guilty and did not ascertain whether he understood them, determine that a factual basis for the elements of the crime was admitted, hold a hearing to determine his competency to plead guilty, or inform him of his right to appeal.

These claims are record based, and should have been raised on direct appeal. Pursuant to CPL 440.10(2)(c), a CPL 440.10 motion cannot be used in place of a claim that should have been brought on direct appeal. This applies, however, when “no such appellate review or determination occurred owing to the defendants unjustifiable failure to take or perfect an appeal during the prescribed period”.

For the reasons stated above, this court finds that the criminal defendant received effective assistance at the plea and sentence proceedings, and further finds unpersuasive defendant’s claim that defense counsel failed to advise him of the right to appeal, the proper procedures and time limitations of effecting it, and the right to appointed appellate counsel. Defendant’s motion to vacate his judgment of conviction pursuant to CPL 440.10 (1) (h) is therefore denied in all respects.

After review of the motion papers, papers on file with the court, and prior court proceedings, defendant’s motion is denied.

If the evidence against you was obtained illegally, seek the help of a Suffolk Criminal Attorney and Suffolk Marijuana Possession Attorney at Stephen Bilkis and Associates.

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