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Grand larceny and Insurance Fraud


Defendant moves pursuant to § 440.10 of the Criminal Procedure Law for an order vacating his judgment of conviction. His conviction followed a negotiated guilty plea to one count of the Class D felony of Insurance Fraud in the Third Degree and one count of the Class E felony of Grand larceny in the Fourth Degree.

The thrust of the instant motion is a claim of ineffective assistance of counsel by Defendant’s two former attorneys.

A Queens County Criminal attorney said that defendant entered a plea of guilty to a Superior Court Information charging a single count of Insurance Fraud 3° and a single count of Grand larceny 4°, with a promise of indeterminate concurrent sentences of one to three years, and a restitution judgment in the amount of $77,199.00. Defendant was originally charged with three counts each of Insurance Fraud 3° and Grand larceny 3° relating to the submission of allegedly false automobile damage claims to certain insurers. Defendant contends that the lawyer was obligated to advise him that his plea would subject him to mandatory deportation. Defendant maintains that the lawyer’s failure to do so constituted ineffective assistance of counsel because the federal law pertaining to the immigration consequences of a plea to such crimes is, Defendant asserts, “simple and straightforward” since both crimes are allegedly deemed “aggravated felonies” within the meaning of the immigration statute, the conviction for which mandates deportation.

Defendant’s then new attorney filed a motion to withdraw Defendant’s guilty plea “as of right” because of his and his client’s assertion that Defendant was “actually innocent.” The lawyer did not challenge the plea based upon prior counsel’s alleged failure to properly advise defendant about the deportation consequences of the plea or the alleged insufficient factual allocution at the time of the plea. By Decision and Order the Court denied the motion and proceeded to sentence Defendant, as promised, to an indeterminate term of 1 to 3 years incarceration in state prison on each count, to run concurrently.

Defendant argues that he has established an ineffective assistance of counsel claim under both federal and state law. Under the federal rubric as articulated in a case, in order to prevail on a Sixth Amendment claim of ineffective assistance of counsel, a defendant must show that counsel’s representation “fell below an objective standard of reasonableness” measured under prevailing professional norms. In addition, a defendant must demonstrate that he was prejudiced by such ineffective assistance such that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”

By virtue of his guilty plea to Grand larceny and Insurance Fraud, Defendant may have been convicted of one or two “aggravated felonies.” Although a review of more than one section of the immigration statute is required in order to reach the conclusion, the crimes to which Defendant plead Grand larceny 4° and Insurance Fraud 3° may well be “aggravated felonies”; Grand larceny is a theft and Insurance Fraud clearly involves fraud.

Conversely, the People argue that in this case, the immigration law is not nearly as simple and direct as Defendant contends and therefore Padilla did not compel counsel to provide specific advice as to deportation consequences of the plea in order to render effective assistance. Here, the crimes to which defendant plead guilty fall under a broad and more nebulous category of crimes crimes involving “moral turpitude” or “aggravated felonies.” In the latter situation, determining which particular crime falls within a mandatory deportation category is, according to the People, not such an easy task.” The People maintain that under such circumstances which they claim are present here. At the very least, the People maintain, the admonition to defendant during the plea allocution that a guilty plea “may subject to deportation or exclusion from the United States” provided a sufficient warning.

In determining whether a defendant has received ineffective assistance on a collateral matter such as the immigration consequences of a plea, courts are constrained to remain mindful of the general principles that obtain in ineffective assistance cases. As noted above, the general standard for determining whether a defendant’s counsel has effectively assisted his client in all primary aspects of a criminal case is whether he or she provided reasonable and meaningful representation. In evaluating whether meaningful representation has been provided, Courts have been loath to employ 20-20 hindsight to override a defense strategy diligently pursued. Indeed, Courts, including the Supreme Court in Strickland, have consistently taken pains to insure that a court will not second guess an attorney’s reasoned judgment.

Accordingly, under the facts adduced in the instant case, it remains unclear whether Defendant’s claim of ineffective assistance satisfies the first prong. The crimes to which Defendant plead are not drug offenses, but rather fall into the somewhat amorphous category of “aggravated felonies” or crimes involving “moral turpitude.” While Defendant claims that he was not informed by his counsel of the possible immigration consequences of a guilty plea, neither of Defendant’s predecessor counsel provided an affidavit in support of his motion, which might have shed some light on prior counsels’ strategy and advise. Moreover, Defendant was told by the District Attorney during his allocution of such possible consequence, and Defendant acknowledged, under oath, that he understood. Bribery was not charged.

Thus, Defendant has failed to establish, by his papers alone, entitlement to relief under yardstick for ineffective assistance of counsel. While, under these circumstances, a hearing to further develop the facts surrounding the nature and quality of immigration advice that counsel may have proffered Defendant might be in order, such hearing is obviated by Defendant’s failure to establish prejudice – -the second prong of the case laws.

In accordance with the test articulated in Strickland, a court, upon a finding that criminal counsel’s performance was deficient, must then determine whether a defendant can show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have instead insisted on going to trial. The People maintain that regardless of the advice or lack thereof, that Defendant received from counsel, his attempt to overturn his conviction should nonetheless be denied because he has failed to satisfy this second prong of the case law’s application.

Cases of assault that have addressed the issue of prejudice in the content of a guilty plea have made clear that a defendant’s mere assertion that he would not have plead guilty had he known of the immigration consequences of his plea is insufficient, standing alone, to constitute prejudice. The Court held that in order to sustain a claim of prejudice that would entitle a defendant to withdraw his plea, the defendant must set forth “factual allegations that, but for counsel’s error, he would not have pleaded guilty.” The Court would then evaluate such allegations “with reference to the face of the pleadings, the context of the motions and defendant’s access to information” in order to determine whether “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.” Since no such factual allegations were adduced, the Court affirmed the Appellate Division’s decision denying defendant’s motion to vacate the judgment against him.

Given that this is not an instance where defendant’s lack of access to information precluded more specific factual allegations, defendant was required to allege necessary facts to support his motion to vacate the judgment of conviction. Because he failed to make a prima facie showing of prejudice, the Appellate Division did not err in denying his motion to vacate the judgment of conviction without a hearing.”

The People contend that based on the papers submitted and the facts underlying Defendant’s fraud conviction, Defendant has failed to demonstrate prejudice sufficient to satisfy this second prong of the case law. The People maintain that in light of the “overwhelming evidence” of Defendant’s guilt far from being prejudiced, received a substantial benefit by pleading guilty: instead of being tried, convicted, possibly sentenced to two consecutive prison terms of 2 1/3 to 7 years and then possibly deported he plead and received concurrent sentences of 1 to 3 years in state prison before his possible ultimate deportation. Not surprisingly, defendant takes a different view. Despite his admission of guilt during his plea allocution, he insists that he is actually innocent, purports in his affidavit to adduce facts that support his contention, and is far more sanguine about his chances for acquittal in a trial.
Embezzlement was not charged.

In the instant case, Defendant has manifestly failed to make such a showing. In the face of mere assertions supported only by Defendant’s own words, the People have at their disposal which Defendant is compelled to acknowledge sworn to, allocuted statements of several of Defendant’s alleged co-conspirators, implicating him as the person who “orchestrated each insurance fraud”, as well as the sworn to statement of the owner of the body shop who “identified defendant as the mastermind of the scheme” to defraud.

In light of such potential evidence from the People, and Defendant’s failure to adduce any “necessary facts to support his motion to vacate the judgment of conviction”, Defendant cannot satisfy the second prong of the case laws establish that he was prejudiced by his plea. Indeed, Defendant’s plea, however induced, may have placed him in a more advantageous position. He is now serving two concurrent sentences of 1 – 3 years; had he proceeded to trial and been convicted, his possible exposure would have been 2 1/3 to 7 years incarceration on each count, consecutive to each other. And, by pleading guilty to the Superior Court Information, Defendant avoided prosecution for the four additional felony counts on which he was originally charged. Moreover, whether convicted by a plea or jury verdict, the immigration consequences would be the same. Under these circumstances, Defendant’s plea and conviction may have been not only condign in their application, but may well have inured to his benefit.
Finally, Defendant’s claim of ineffective assistance on the grounds that his second counsel failed to challenge the propriety of the Defendant’s plea allocution is without merit since the plea and allocution were already found to be sufficient by this Court in its 2010 Decision.

Generally, the negligence of a lawyer binds the client. However, if the negligence was so gross, the lawyer must be made answerable for it. Here in Stephen Bilkis and Associates, our Queens County Criminal lawyers handle your cases well and make it a point that they serve you by exerting their efforts. For a property stealing case, you can also consult our Queens County Robbery attorneys and receive a worthy advice from them. Call us now.

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