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Court would sentence defendant to four months’ incarceration.

A Queens Criminal Lawyer said that, defendant moves pursuant to Criminal Procedure Law §440.10(h) to vacate the judgments of conviction in six cases, arguing that his prior plea attorney failed to provide effective assistance of counsel during and prior to his guilty pleas in the Queens Misdemeanor Treatment Court (QMTC). Defendant, who is currently facing removal proceedings initiated by the United States Department of Homeland Security, claims that he advised his plea attorney that he was not a citizen but a lawful permanent resident, and that his plea attorney failed to advise him regarding the immigration consequences of his guilty pleas. Defendant, who was required to complete drug treatment as a condition of his pleas, also alleges that had plea counsel correctly advised defendant regarding the immigration consequences of his pleas, he would not have pled guilty and would have proceeded to trial on his six cases.

A Queens Drug Crime Lawyer said that, soon after defendant filed his motion, the United States Supreme Court decide the 2010 case, which held that counsel for criminal defendants are constitutionally obligated to advise their non-citizen clients regarding the adverse immigration consequences of their guilty pleas. Defendant’s motion to vacate raises important questions regarding, inter alia, the scope of defense counsel’s in the 2010 case-imposed duty to provide immigration advice to non-citizen defendants charged with removable/deportable offenses, particularly where, as here, such defendants enter drug treatment in exchange for a promise that the underlying pleas would be vacated and the charges dismissed. The motion to vacate also raises important questions regarding the scope of the Court’s review in determining whether there is a reasonable probability that defendant would have insisted on going to trial had he been properly advised as to the immigration consequences of his guilty pleas.

Defendant was arrested a total of six times over a nine month period in 2009. Initially, defendant had three open cases referred to the QMTC. The charges in those cases included Criminal Possession of Stolen Property in the Fifth Degree (PL §165.40) (two counts), Criminal Possession of a Controlled Substance in the Seventh Degree (PL §220.03), Assault in the Third Degree (PL §120.00), Petit Larceny (PL §155.25) and Harassment in the Second Degree (PL §240.26). These cases were referred to the QMTC after the People offered a plea disposition which would have required defendant to plead guilty to an unspecified class A misdemeanor with a sentence of three years’ probation on one case; an unspecified B misdemeanor with a sentence of a conditional discharge and either five days of community service or a $250 fine on another case; and a violation, Disorderly Conduct (PL §240.20), with a sentence of a conditional discharge.

On July 27, 2010, defendant was assessed by a QMTC case-manager, who, based upon defendant’s heroin possession addiction and a 15-year history of drug abuse, recommended that defendant enter a drug detoxification unit and a 28-day drug rehabilitation unit, followed by a 9-month residential drug treatment program. Defendant indicated that he was in agreement with the treatment plan.

A Queens Criminal Lawyer said that, defendant then pled guilty to Criminal Possession of Stolen Property in the Fifth Degree, Criminal Drug Possession of a Controlled Substance in the Seventh Degree, and Assault in the Third Degree. Pursuant to a written plea agreement, the Court would vacate defendant’s pleas and dismiss and seal each of the cases if defendant completed the drug treatment program. The plea agreement also provided that, should defendant fail to complete the program, the Court would sentence defendant to four months’ incarceration. During the plea allocution, defendant indicated that he understood the provisions of the plea agreement. The cases were adjourned for an update on defendant’s progress in treatment.

A Queens Drug Crime Lawyer said that, two months after defendant was sentenced, defendant moved to vacate the judgments of conviction pursuant to Criminal Procedure Law §440.10(h). Defendant essentially claims that although he notified his plea counsel that defendant was a lawful permanent resident, defendant’s plea attorney failed to advise him regarding the immigration consequences of his guilty pleas — pleas to crimes which, according to defendant, subjects defendant to removal from the United States. The People opposed defendant’s motion to vacate, principally arguing that defendant failed to establish, under the second prong of Strickland’s ineffective-assistance-of-counsel test, that he was prejudiced by plea counsel’s alleged failure to advise defendant of the immigration consequences of his guilty pleas. The Court issued an interim order on June 2, 2010, granting defendant’s motion only to the extent of ordering a hearing.

The issue in this case is whether defendant’s judgment to vacate the judgments of conviction in six cases, on the ground that his prior plea attorney failed to provide effective assistance of counsel during and prior to his guilty pleas in the Queens Misdemeanor Treatment Court (QMTC).

Before a criminal defendant decides whether to plead guilty, he is constitutionally entitled to the “effective assistance of competent counsel”. In Strickland, the Supreme Court set forth a two-part test for assessing claims of ineffective assistance of counsel.

The first prong of the Strickland test requires the defendant to “show that counsel’s performance was deficient” and “fell below an objective standard of reasonableness”, which is “essentially a restatement of attorney competence”. In determining whether an attorney’s performance is deficient and falls below an “objective standard of reasonableness” under Strickland, courts should assess counsel’s performance against “prevailing professional norms”. The second prong of the Strickland test, also known as the “prejudice” prong, requires the defendant to show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different”. In the context of an ineffective assistance of counsel claim regarding a guilty plea, however, the prejudice prong more specifically requires the defendant to 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”.

Even if the Court were to find that plea counsel was deficient, vacatur on ineffective assistance of counsel grounds would still not be warranted unless defendant were able to satisfy Strickland’s second prong by “affirmatively proving” prejudice. Because the purpose of the Sixth Amendment’s effective assistance of counsel guarantee is to ensure that the defendant has the assistance necessary to “justify reliance on the outcome,” a mistake by counsel does not “warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment”. As a result, to prove prejudice under Strickland, a defendant would be required to demonstrate that there was a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different”.

Here, criminal defendant claims that he would not have pled guilty and would have insisted upon going to trial had plea counsel properly and fully advised defendant of the immigration consequences of pleading guilty. In support of that claim, defendant alleges that he came to the United States as a Romanian refugee when he was only twelve years old and later became a lawful permanent resident in 1996, remaining in the United States for 21 years. Defendant also claims that he would have never pled guilty had he known that he could be deported because he has no home or family in Romania and all of his family members are in New York, including his mother who is seriously ill and has a three-year life expectancy.

Although the Court fully understands defendant’s desire to remain in the United States with his ill mother, the Court declines to credit defendant’s self-serving claim that he would not have pled guilty and would have insisted upon going to trial had plea counsel properly and fully advised defendant of the immigration consequences of pleading guilty. Defendant’s claim is belied by the fact that defendant was perfectly willing to risk deportation (and seven months’ jail, along with a criminal record) when he repeatedly absconded from the drug treatment programs with full knowledge that the absconding would most certainly result in adverse immigration consequences. This fact, evincing as it does a reckless disregard for his immigration status, is the most telling and crucial piece of evidence for the Court on the question of what defendant would have done had he been properly advised regarding the immigration consequences of his guilty pleas.

Furthermore, defendant’s claim of prejudice is unsupported by, and otherwise largely inconsistent with, his own hearing testimony. First, when defendant was repeatedly asked on direct and cross examination what he would have done differently had he known of the immigration consequences of his plea, defendant simply responded that he would have urged counsel to find a more favorable plea. This, of course, is insufficient to establish prejudice. Indeed, defendant’s current counsel completed his direct examination of defendant without defendant ever having testified that he would have refused to plead guilty and would have insisted upon going to trial had he been properly advised regarding the immigration consequences of his plea.

When Court would sentence defendant to four months’ incarceration…. criminal defendant was then asked if he would have done anything else differently if a more favorable plea were not an option, defendant testified that he would have taken his drug treatment program more seriously. Defendant repeated this testimony when the Court, in its own questioning, then gave defendant an opportunity to clarify his testimony. When the People then pointedly asked defendant whether he had previously testified that he “would have gone to trial” had he been properly advised regarding the possibility of deportation, defendant plainly answered, “No.” Again, the foregoing testimony is inconsistent with defendant’s current claim that he would not have pled guilty had he known of the adverse immigration consequences of his guilty pleas.

The Criminal Court is aware that on re-direct examination, defendant, steeped in the reality of imminent removal, ultimately testified that he “would not” have pled guilty had he known that “he may be thrown out of this country and not be able to return.” That answer, however, was completely undermined by the preceding portions of defendant’s testimony and otherwise does not weigh heavily with the Court, given that it was elicited with the strong prompting of a leading question. Defendant’s actions in this case — his repeated failure to complete treatment knowing full well that there would be adverse immigration consequences — speak much louder than his single answer to a leading question.

Here, if defendant were fully informed regarding the immigration risks of each of the options available to defendant (plea versus trial), defendant would have learned that insisting upon going to trial would likely place him at greater risk of removal than pleading guilty in QMTC. This is because pleading guilty and entering drug treatment (a) guaranteed that defendant would avert an otherwise possible aggravated felony designation, which would result in automatic removal; (b) presented defendant with the opportunity to seek cancellation of removal based upon rehabilitation; and (c) reduced the risk of ICE detection of defendant inasmuch as defendant would have remained out of jail.

In any event, even if defendant were found not guilty of the removable offenses, defendant would have technically remained at risk of removal because his long-standing drug addiction constituted an independent ground for removal. Nor did defendant set forth any particular “special circumstance that might support the conclusion that he placed particular emphasis on.

Under all of the circumstances, including the Court’s credibility findings, this Court finds that defendant failed to demonstrate “that there is a reasonable probability that, but for counsel’s errors, the defendant would not have pleaded guilty and would have insisted on going to trial”.

Accordingly, defendant’s motion to vacate his guilty pleas is hereby denied.

If you have been denied of a competent counsel in your criminal case, you will need the help of a Queens Criminal Attorney and Queens Drug Crime Attorney at Stephen Bilkis and Associates. Call us now.

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