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CPL 440 motion


On 24 May 2006 defendant JG, a lawful permanent resident of the United States since 2005, but a native citizen of the Dominican Republic was alleged to have been caught by detective R with cocaine possession and selling the same to two apprehended buyers in Kings County. Defendant was indicted on two counts each of criminal sale of a controlled substance in the third degree (Penal Law § 220.39[1]), criminal sale of a controlled substance in the fifth degree (Penal Law § 220.31) and criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03). Initially, defendant was represented by two different attorneys: one at arraignment and another one who unsuccessfully moved to dismiss the indictment pursuant to CPL 30.30 and to suppress the recovered physical property. On 27 February 2008, now represented by AS, Esq., defendant accepted the People’s offer to plead guilty to a single count of criminal possession of a controlled substance in the seventh degree with all the felonies having to be dismissed on the People’s motion. This is in full satisfaction of the above-captioned indictment, in exchange for a promised sentence of a conditional discharge and forfeiture of $4,335, which had been recovered from him. In the plea minutes, AS assured the court that after an extensive discussion with the defendant and his immigration attorney, they accepted the offer. The court noted the independence of immigration authorities in implementing immigration laws and reiterated that a drug possession conviction can certainly lead to deportation. Thus, the defendant was then sentenced immediately. Thereafter, he has not appealed his judgment of conviction or engaged in any other post-conviction litigation.

Subsequent to his plea and sentence in the drug possession case, believing that his 2008 plea would not cause any immigration issues, he traveled outside the United States and attempted to re-enter at JFK International Airport on 13 April 2010. On April 14 2010 he was arrested by officials of Immigration and Customs Enforcement of the United States Department of Homeland Security (“ICE”) and charged him with violating sections 212(a)(2)(A)(i)(I): commission of a crime of moral turpitude and 212(a)(2)(A)(i)(II): commission of a crime relating to a controlled substance, of the Immigration and Nationality Act (“INA”). In defense, the defendant’s present attorney, AF, Esq., argued that the charge relating to the commission of a drug crime of moral turpitude for defendant’s 1996 New York attempted assault conviction, was improperly brought because defendant had previously obtained a waiver of that conviction when he obtained a green card in 2005. On 9 August 2010, at defendant’s first scheduled Executive Office for Immigration Review (EOIR) hearing date, the Immigration Court dismissed section 212(a)(2)(A)(i)(I) of the INA from the charging instrument. Here, he also insisted that in his CPL 440 affidavit, he would never have taken the plea had he been correctly informed by his counsel about the immigration consequences of that plea. The defendant was detained at that time by ICE in a York County Prison in Pennsylvania, pending the completion of deportation proceedings.

In the meantime, on 30 June 2010 the defendant through his newly retained counsel, AF filed a Criminal Procedure Law 440 motion (1) praying the Court for retroactive application to his case of a recent United States Supreme Court’s decision in Padilla v. Kentucky, 2010 addressing this counsel’s obligations of informing his client about deportation consequences of a guilty plea, and (2) seeking to vacate the judgment of conviction on the ground of ineffective assistance of previous counsel for his failure to advise the defendant about the immigration consequences triggered by his 2008 guilty plea to a controlled substance offense.

The criminal defendant in his motion alleged that at some point prior to his plea he asked his attorney about the immigration consequences of a guilty plea but his attorney admitted that he was ignorant concerning immigration law, declined to research the issue for defendant, and informed defendant that he should seek advice from an immigration specialist (neither party however has provided an affirmation from the previous counsel, AS on this regard). Defendant further alleged that “with nowhere else to turn” he paid an immigration paralegal to assess his situation and was erroneously informed that a single misdemeanor conviction would have no adverse immigration consequences (but during the 16 August 2010 oral argument, the newly retained counsel AF was unable to identify this paralegal and consequently no affidavit was ever submitted from him). Defendant argued that being an admitted neophyte in immigration matters and having limited financial resources he was forced to rely upon the bad advice of a non-professional and was denied the effective assistance of counsel by his attorney at the time he took the plea in question. On 16 August 2010 the People submitted an affirmation and memorandum of law in opposition to that motion and the Court heard oral argument from both sides.

(1) The Court answers the CPL 440 motion on the threshold question in the affirmative and determined the impact of the Padilla case on the facts of the instant case.

Prior to Padilla v. Kentucky, it was well-settled in New York that deportation was a collateral consequence “peculiar to the individual’s personal circumstances and not one within control of the court system” and accordingly the failure by a defendant’s attorney to warn the defendant of the possibility of deportation was not grounds to claim ineffective assistance of counsel. Actual misadvise by counsel concerning immigration consequences of a plea, however, could constitute ineffective assistance of counsel. But this was altered on 31 March 2010 by the Padilla case. In this case, Padilla was a lawful permanent U.S. resident and a Vietnam veteran who pleaded guilty to a drug crime by transporting a large amount of marijuana possession in his tractor trailer. Padilla alleged that his counsel advised him that his 40 years as a U.S. resident would likely preclude any detrimental immigration consequences resulting from his plea of guilty. Padilla’s drug conviction however was a ground for mandatory deportation. Padilla held that the defendant’s claim was subject to the two-prong ineffective assistance of counsel test in Strickland v. Washington (1984), not only to the extent that he alleged affirmative misadvise, but also to the extent that he alleged omissions by counsel, i.e. the failure to advise a defendant on the immigration consequences of a plea. Here, the Court noted that federal immigration law had changed dramatically over the past 90 years and that “immigration reforms over time have expanded the class of deportable offenses and limited the authority of judges to alleviate the harsh consequences of deportation. The drastic measure’ of deportation or removal is now virtually inevitable for a vast number of noncitizens convicted of crimes through the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA’) and the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA’). The Court also noted that because of deportation’s close connection to the criminal process it is uniquely difficult to classify as either a direct or collateral consequence. The Court therefore concluded that the direct versus collateral distinction was “ill-suited” to evaluating a Strickland claim concerning the specific risk of deportation. The Court also opined that a holding limited to affirmative misadvise would invite “two absurd results.” First, it would give an attorney an incentive to remain silent about immigration consequences, even where answers are readily available. Second, it would deny a class of defendants least able to represent themselves the most “rudimentary” advice concerning deportation when it is readily available. The Court noted that it had given “serious consideration” to the concerns that it was inviting a “floodgate” of litigation in light of its holding in Padilla. The Court stated, however, that it seemed unlikely its decision would have a significant impact on those convictions already obtained as the result of plea bargains because for at least 15 years “professional norms have generally imposed an obligation on counsel to provide advice on the deportation consequences of a client’s plea”.

The Court first determined the effect of defense counsel’s (AS) advice to JG that he should seek outside immigration advice. The Court concluded that merely advising a client to seek outside immigration advice, without more, failed to meet the affirmative duty set forth in Padilla, at least where the immigration implications of the plea were fairly straightforward, as was the situation in the case, and where the “specialist’s” advice was wrong. This meets the first prong of Strickland Test, requiring a finding of deficient representation.

The Court next determined whether criminal defendant suffered prejudice under the second prong of Strickland Test. The People argued that defendant has not demonstrated that he suffered such prejudice since he received the benefit of a very favorable plea bargain, thereby avoiding a real risk of a long term imprisonment and ultimate automatic deportation. The People argued that defendant most likely could have avoided any immigration consequences by his guilty plea because ICE enforcement is sporadic for those defendants who have received non-jail sentences. Finally, the People argued that the evidence against defendant was overwhelming and therefore it is not credible that defendant would have opted to go to trial even if he was appropriately apprised of the immigration consequence. The Court rejected all these arguments and found from all the circumstances of the plea, as well as defendant’s subsequent conduct and his current moving papers, that defendant’s mistaken belief that he would not be deported if he pled guilty to a single misdemeanor motivated him to take the plea. Clearly, the drug crime defendant was concerned enough to ask his attorney about the immigration consequences and he followed counsel’s advice that defendant should get further guidance from an immigration specialist. That defendant went to a paralegal does not alter the Court’s finding that defendant would not have pleaded guilty but for the deficiencies in the representation by his counsel. The court found that it was disingenuous for the People to call the evidence overwhelming when during the plea the People were unable to answer satisfactorily the Court’s inquiry about why such a favorable disposition was being offered and whether there was any connection to a known scandal involving the Brooklyn South Narcotics Unit of the New York City Police Department which resulted in many indictments being dismissed during that general time period. Even as late as 16 August 2010 the prosecutor could provide the Court during oral argument of this motion with no information on that issue.

However, a more difficult issue was for the Court to determine whether defendant suffered prejudice when the trial court gave defendant deportation warnings during his plea and defendant chose to ignore them and follow contrary advice. Citing the case of United States v. Bhindar (2010) where the Chief Judge stated: “The Court is aware that the issue of whether a court’s advisement to a defendant that his guilty plea will result in removal-thereby removing any doubt from the defendant’s mind despite any contrary advice from defendant’s lawyer-has not been addressed post-Padilla.” The Judge found that a clear instruction from the Magistrate was sufficient to put defendant on notice that he would be removed if he pleaded guilty. The Judge cited Zhang v. United States, which held, in a case where the question of whether defendant’s guilty plea would result in removal, that the District Court’s notification to defendant that he may be removed if he pleaded guilty was sufficient to put defendant on notice that his guilty plea had potential immigration consequences. Thus, here the Judge concluded: “With this clear instruction, defendant would be hard-pressed to show that the ineffective assistance of counsel prejudiced his defense, a necessary element under Strickland v. Washington.”

Nevertheless, adhering to the strict requirements of Padilla, the court found defendant in fact to have been misled by bad advice from a so-called retained specialist and by a lack of advice from his defense attorney, the Court’s general warning will not automatically cure counsel’s failure nor erase the consequent prejudice. Accordingly, the defendant, under both the federal two-prong Strickland standard and the New York rule of meaningful representation, has succeeded in establishing his ineffective assistance of counsel claim. Marijuana was involved.

Therefore, the motion was granted. The plea and sentence were vacated and the entire indictment was restored to the court’s trial calendar for 6 October 2010.

These statements by the Padilla Court and its overall treatment of the potential “floodgate” issues are reasons in themselves that the Court saw to apply it retroactively, at least to recent cases, such as the instant case. However, the Padilla Court did not specifically address whether its decision should be retroactively applied and any appellate court in New York has not yet addressed this issue. The Court found that Padilla case did not create a new rule, despite the fact that in New York and federal courts, deportation was considered merely a collateral consequence. It applied its Strickland precedents to a new set of facts. Its majority opinion, at its core, held that, since the severe changes affecting immigration law in recent years, the Strickland standards have not been met where defense attorneys failed to give correct advice to clients in criminal cases facing deportation, when the immigration consequences were readily ascertainable, as they were in Padilla and in Garcia. Further, the majority plainly declared that the distinction between collateral and direct consequences of a criminal conviction was ill-suited to the immigration context, and that the distinction between no advice and misadvise leads to absurd results.

(2) On ineffective assistance of counsel and its retroactivity, having concluded that Padilla must be applied retroactively and adhering to the strict requirements of Strickland test as applied in that case, the Court agreed with the defendant.

(a) On retroactivity of Strickland Test applied in Padilla:

The People argued that it should not be applied retroactively to cases on collateral review because it created a new rule of criminal procedure that does not fall within the exceptions to the rule of retroactivity set forth in Teague case. Defendant implicitly took the opposite position.

The two pivotal cases addressing the retroactive effect of new decisions dealing with constitutional criminal procedure are Teague v. Teague (1989) and People v. Eastman (1995) which adopted the Teague retroactivity analysis and its progeny. Under Teague a retroactivity analysis turns on whether a decision announced a “new rule” of criminal procedure or merely applied an “old rule” in a new context. An old rule is to be applied on both direct and collateral review. Under Eastman: “When a Supreme Court decision applies a well-established constitutional principle to a new circumstance, it is considered to be an application of an old rule, and is always retroactive.”

While it is clear that when a Court overturns its own precedent a new rule is established, it is more difficult to determine whether a Court is announcing a new rule when a decision extends the reasoning of its prior cases. The Teague Court explained, however, that generally “a case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government. And it can hardly be said that recognizing the right to effective counsel breaks new ground. To put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time the defendant’s conviction became final. Moreover, the Court has stated that the mere existence of conflicting authority does not necessarily mean a rule is new.

(b) In applying the Federal Strickland case and the New York State Baldi case as ineffective assistance of counsel tests in the instant case:

Under the federal standard for ineffective assistance of counsel a reviewing court must engage in a two-prong analysis. The court must first determine whether counsel’s performance was deficient, and second, whether a drug crime defendant suffered actual prejudice as a result of counsel’s deficiency, this is the Strickland test. Under New York law the analysis is somewhat different. A defendant’s right to the effective assistance of counsel will be satisfied “so long as the evidence, the law, and the circumstances of a particular case, viewed in totality, and as of the time of the representation, revealed that the attorney provided meaningful representation (People v. Baldi 1984).

Stephen Bilkis & Associates’ Kings County Criminal Attorneys are constantly proficient with Criminal Procedure Law and the latest jurisprudence. Our Kings County Drug Crime Attorneys can help you with drug related cases. You can find our offices conveniently located throughout New York. Please don’t hesitate to visit us or reach us through our toll free number found at our website.

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