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The Court ruled that deportation is not a direct consequence of conviction,4


In November 2004, the defendant was arrested for stealing a 2004 Lexus automobile, valued at more than $50,000, and was subsequently charged with grand larceny in the second degree, a class C felony, and eleven other offenses. Thereafter, the defendant plead guilty to criminal possession of stolen property in the third degree, a class D felony, in satisfaction of the indictment, and in exchange for a promised “split sentence” of five months in jail1 and five years probation. As part of the plea agreement, the defendant also waived his right to appeal. Later, the court rendered judgment and sentenced the defendant as promised.

A Kings County Criminal Attorney said that the court issued a “Declaration of Delinquency” against the defendant, based on the “Specifications of Alleged Violation of Probation” (“VOP”), filed by the Department of Probation. Thereafter, the defendant appeared before this court in Part 32, and plead guilty to the VOP, under “Specification #1” thereof, in exchange for a sentence [re-sentence] of one-to-three years in prison, the minimum prison term authorized for criminal possession of stolen property in the 3rd degree. The Supreme Court revoked the defendant’s sentence of probation, and re-sentenced him accordingly.

In papers, the defendant, who is represented by retained counsel on the instant motion, now states that he wishes to withdraw his guilty pleas, both to the VOP and to the underlying crimes of criminal possession of stolen property in the third degree, and he moves this court to vacate both convictions. Thereafter, the People filed papers opposing the defendant’s motion.

The Court has reviewed the Supreme Court case file; the papers filed by both parties, including the exhibits appended thereto; and the minutes of the plea and re-sentencing proceeding held. For the reasons set forth below, the defendant’s motion to vacate either and/or both of the aforesaid convictions is summarily denied.

The defendant suggests that Probation filed the VOP, as a result of his arrest in Kings County, on charges of petit larceny, criminal possession of stolen property in the fifth degree, and criminal mischief in the fourth degree, all class “A” misdemeanors. The defendant notes that he plead guilty under this docket to the criminal mischief count and was sentenced to “time served”,2 two days after he plead guilty to the VOP.

The defendant now claims he did not understand that he would violate the sentence of probation imposed, “by merely getting arrested on some new charge,” as opposed to “getting arrested and convicted of a subsequent felony.” Thus, the defendant claims, his guilty plea was obtained in violation of his constitutional rights, the ground for vacatur, in that it was not entered “voluntarily, knowingly and intelligently.”

The defendant maintains that the court who accepted his guilty plea, is to blame for his failure to understand the conditions of his promised sentence of probation; he alleges that the court engaged him in a plea allocution which was “confusing and unclear,” and “failed to clearly and adequately advise” him of a “direct consequence” of his conviction and five-year probation sentence.

Specifically, the defendant contends that the court told him there were three conditions to his probation, and that if he violated any of them, he would be sentenced to state prison. According to the defendant, the court warned that he would violate one condition if he failed to report to Probation, and a second if he failed to appear in court as required — but as to the third condition, the court “alternately” told the defendant he would be in violation if he “got arrested for something new,” and if he “got convicted of a subsequent felony.” As a result, the defendant maintains, “it is not clear from the record” as to which of the two eventualities would constitute a probation violation, and that he had understood it to be only the latter.

In purported support of this claim, the defendant has submitted the transcribed minutes of the plea proceeding. Although the defendant alleges no non-record facts to support his claim, he nevertheless argues that his motion to vacate judgment should not be procedurally barred, because the court’s “error is not readily apparent from the record.”

As the defendant apparently anticipated, the People argue that the defendant’s claim is procedurally barred, because it is based entirely on the record and could have been raised on direct appeal to the Appellate Division. The People note that the defendant’s waiver of his right to appeal would not have barred him from challenging the voluntariness of his plea on direct appeal, and therefore, does not justify the defendant’s failure to have done so, or entitle him now to use CPL §440.10 as a substitute for appeal.

The People contend that the defendant’s motion is also without substantive merit, characterizing as “disingenuous” the defendant’s claim that he was not adequately advised as to the terms of his plea. The People correctly note that the three conditions imposed by the court at the plea proceeding, pertained only to the court’s promise to sentence the defendant as provided in the plea agreement, and not to the terms of the defendant’s service of probation after such sentence was imposed. They assert that the court’s plea colloquy was thorough, and properly informed the defendant that (1) if he did not report to Probation, or appear in court when required, or if he “got arrested for something new,” the court would sentence him to state prison and would not allow him to withdraw his plea; and (2) upon his sentencing as per the plea agreement, he would have a felony conviction on his record, and if convicted of committing a subsequent felony, he would be classified as a “predicate felon” subject to a mandatory state prison sentence. The People argue that the court was not required, before accepting the defendant’s plea, to advise him of the rules he would be obliged to follow while serving his sentence of probation.

The People point out that the defendant, represented by able counsel, entered into a beneficial plea agreement, which subjected him to a much less onerous sentence than the maximum authorized for the crime to which he plead guilty, let alone for the top count and would have enabled the defendant to avoid prison altogether, but for his own “misdeeds” while serving his sentence of probation.

The Court in deciding this case agrees with the People that the defendant’s instant claim is procedurally barred, which provides that a court must summarily deny a motion to vacate judgment when sufficient facts appear on the record underlying the judgment to have permitted adequate appellate review of the issue raised, and yet no such appellate review occurred due to the defendant’s unjustifiable failure to raise the issue on appeal. The defendant’s assertion that this provision does not apply to his motion because the court’s alleged “error” during the plea colloquy “is not readily apparent from the record,” is entirely unsupported. The defendant has submitted the minutes of the plea colloquy with his papers, and relies on his interpretation of the court’s remarks therein to advance his claim for vacatur; if he is aware of evidence de hors the record to establish that the court did not adequately inform him of the consequences of his plea, he has failed to share it in his papers.

The defendant also appears to have misinterpreted the holdings in a case, addressing the question of whether a particular “result” of a conviction is a “direct consequence” thereof. In that case, the Court of Appeals distinguished between “direct” and “collateral” consequences of a conviction, and held that when accepting a plea, a court must advise the defendant of the former, but not the latter. The Court defined a direct consequence as “one which has a definite, immediate and largely automatic effect on the defendant’s punishment”, and then applied that definition to “deportation”. The Court ruled that deportation is not a direct consequence of conviction,4 “because it is a result peculiar to the individual’s personal circumstances and one not within the control of the court”.

In another case, the Court of Appeals applied the same definition and found that “post release supervision,” a set period of supervision which extends beyond the expiration of a defendant’s prison term, is a direct consequence of conviction if it is included in the sentence for such conviction. Accordingly, the Court held that a defendant must be informed at the plea proceeding if his promised sentence will include a period of post-release supervision. However, the Court did not suggest that a defendant must likewise be informed of the rules which would pertain during such supervision and/or the penalties for violation thereof.

Applying the definition to probation revocation, the “consequence” at issue in the case at bar, the court finds that revocation is not a direct consequence of a conviction when the sentence therefore is probation. Indeed, probation revocation is not even a “collateral” consequence in the same sense as deportation — revocation is a consequence solely of a defendant’s conduct while serving probation. Accordingly, this court agrees with the People that the court’s plea colloquy, adequately advised the defendant of the direct consequences of his plea.

Moreover, as Probation states in its VOP papers, the defendant was advised in writing of the conditions pertaining to probation at sentencing. The court file contains a document entitled “Conditions of Probation,”, bearing the defendant’s name, indictment number, the court’s name, the court clerk’s signature, and the defendant’s signature, ordering the defendant to comply with nine general conditions, and to “follow the instructions of the Probation Officer as to the way in which they are to be carried out.” The conditions require the defendant, inter alia, to report immediately to Probation; to remain within the jurisdiction unless granted permission by the court or Probation Officer; and to notify the Probation Officer if arrested. Notably, they do not specifically require the defendant not to commit more crimes; this admonition is codified, which provides that a probationer’s commission of an additional offense, other than a traffic infraction, constitutes a ground for revocation of such sentence irrespective of whether such fact is specified as a condition of the sentence. “That condition should be obvious to any offender and revocation has been upheld where the condition was not expressly specified by the court”. The defendant need not be convicted of such additional offense; proof by a preponderance of the evidence, at a probation violation hearing, that the defendant committed the offense is sufficient.

Accordingly, four arrests and/or convictions were included among the nine separate probation violations alleged against the defendant by Probation in its collective VOP papers, apparently prepared. Probation asked the court to revoke the defendant’s sentence of probation and re-sentence him to incarceration.

After the defendant had twice failed to report for supervision in New York and had returned to Florida without permission, a warrant for his arrest was ordered at Probation’s request. The defendant was eventually “picked up on an out of state action,” and brought before this court.

Thereafter, as noted, the defendant plead guilty to the VOP before this court, his misdemeanor conviction for disorderly conduct, to cover all of the Specifications and in exchange for the minimum prison sentence authorized for the underlying crime. The minutes of this proceeding reveal that the defendant never indicated that he did not understand that a non-felony conviction could result in revocation of his probation; to the contrary, the defendant acknowledged not only that he had plead guilty to the misdemeanor crime of disorderly conduct, but that he had thereby violated his probation.

The defendant’s motion to vacate judgment under CPL §440.10 is summarily denied in its entirety.

Accused are still entitled to remedies sanctioned by law, for they remain innocent until proven otherwise. Here in Stephen Bilkis and Associates, our Kings county Criminal lawyers make it a point that the rights of our clients are protected in every stage of the case. Contact us now and let us handle your problems.

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