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Appellate Division nor the Court of Appeals has reconciled the issue.


On the evening, the defendant and three of his associates were engaged in a business transaction on a busy street in Queens County. The business being conducted was the illegal sale of cocaine and the purported buyer was an undercover police officer. Arrested shortly after the sale by a police field team, the defendant was found to be in possession of ten dollars of pre-recorded buy money and two additional packets of cocaine.

A Queens County Criminal lawyer said that the defendant was charged with the crime of Criminal Sale of a Controlled Substance in the Third Degree, a “B” felony which then carried a maximum indeterminate prison term of 8 -25 years. However, due to successful pre-trial plea negotiations undertaken by his attorney, the defendant, in February 1991, was offered and then accepted a highly favorable plea bargain: the defendant pled guilty to the lesser included offense of Attempted Criminal Sale of a Controlled Substance in the Third Degree and was promised a jail sentence of only six months, together with five years of probation.

In May 1991, the defendant was sentenced in accordance with the plea. Thereafter, a Violation of Probation was filed against the defendant by the Dept. Of Probation; due to the defendant’s subsequent non-appearance in court, a bench warrant was issued. In July 1993, the defendant was returned on the warrant, and thereafter, the defendant pled guilty to the Violation of Probation. The defendant’s probation was revoked and resentenced the defendant to a definite sentence of one year.

The defendant, a native and citizen of Colombia, was admitted to the United States at Miami, Florida, in December 1984, as a lawful permanent resident. In November 2009, the defendant was arrested by Immigration and Customs Enforcement Agents from the U.S. Department of Homeland Security, pursuant to Section 237 (a)(2)(A)(ii) of the Immigration and Nationality Act. It is alleged that, after admission to this country, the defendant has been convicted of two or more crimes involving moral turpitude not arising out of a single scheme of criminal misconduct. The defendant remains in federal custody awaiting removal proceedings, under Section 240 of the Immigration & Nationality Act.

The defendant has now moved, pro se, for an order vacating the judgment of conviction, upon the ground that he received ineffective assistance of counsel at the time of his plea. More specifically, the defendant alleges that the failure of trial counsel to advise him of the possible immigration consequences of his guilty plea violated his Constitutional right to the effective assistance of counsel, thereby rendering his plea involuntary. The defendant further contends that had he been aware of the risk of deportation, he would not have pled guilty and would have proceeded to trial.

In seeking to overturn this nearly 21 year old conviction upon the ground of ineffectiveness of counsel, the defendant has primarily relied upon the United States Supreme Court’s holding in a case where the Supreme Court acknowledged that there will be “numerous situations in which the deportation consequences of a particular plea are unclear or uncertain.” In addressing the duty of defense counsel, the Court held: “When the law is not succinct and straightforward a criminal defense attorney need not do more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear the duty to give correct advice is equally clear”.

Despite the Supreme Court’s holding, the People argue that this Court should not consider its legal ramifications upon this defendant’s application for collateral relief because, it is contended, the case should not be applied retroactively. To date, there have been multiple and differing opinions regarding retroactivity rendered at the trial court level within this State, but neither of the four Departments of the Appellate Division nor the Court of Appeals has reconciled the issue.

However, the United States District Court for the Eastern District of New York, in another case held, in a habeas relief proceeding, that “new constitutional rules of criminal procedure, such as that laid out by Padilla, are not deemed retroactive to cases on collateral review” the Judge concluded that “a new rule is not retroactive unless it is such a watershed rule'” that it “alter(s) our understanding of the bedrock procedural elements essential to the fairness of a proceeding.” The Judge noted that the only rule ever specifically determined to be retroactive by the Supreme Court was the “right to counsel”. Similarly, in another case, the Judge held that “to the extent that a newly recognized constitutional rule of criminal procedure, that rule should not be deemed retroactive to cases on collateral review”

This Court agrees with the People’s position and has so held in the past finding that “under controlling retroactivity principles, “this new rule or obligation to inform a client whether a plea of guilty subjects him to a risk of deportation should not be applied retroactively to cases on collateral review. The Court’s holding is based upon the retroactivity principles set forth in a case, as adopted by the Court of Appeals, which may be summarized as follows: “(A) case announces a new rule when it breaks new ground or imposes a new obligation on the States or Federal Government; [or,] [t]o 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”.

Therefore, in determining this defendant’s ineffectiveness of counsel claim this Court is not constrained to abide by the dictates of the precedent, as the defendant’s conviction pre-dated the decision by some 19 years. However, assuming arguendo, that in the future case will be held to be retroactive to matters on collateral review, the Court will apply the Federal effectiveness of counsel test and the New York State standard “of meaningful representation”.

Addressing the first prong of the Strickland test, the Court finds that the defendant failed to establish that counsel’s representation fell below an objective standard of reasonableness. “Based upon the professional norms prevailing when defendant pled guilty” in 1991, defense counsel would not have been ineffective for failing to advise defendant of the immigration consequences of his guilty plea.

Counsel for the defendant effectively negotiated an extremely good deal for the defendant, who was facing a “Draconian” sentence if convicted of either or both of the “B” felonies that he was charged with, under the former so-called “Rockefeller Drug Laws.” The defendant’s protestations, that had he known of the future potential immigration consequences upon conviction he would have gone to trial, ring hollow for several reasons. First, the evidence of defendant’s guilt was overwhelming, as he was observed selling crack cocaine to an undercover officer and was immediately arrested, only to be found with pre-recorded buy money and additional drugs on his person. Second, he has been unable to present any colorable defenses that he could have raised to the charges. Third, had he gone to trial and been found guilty, the possibility of deportation was even greater. And fourth, the guidelines regarding deportation pre-1996 were considerably weaker, as evidenced (see, below) by the fact that removal proceedings were not instituted until 18 years after the subject conviction, and were then based upon different crimes.

Viewing the credible facts and circumstances surrounding counsel’s representation of the defendant, in their totality and at the time of said representation, the Court finds that the defendant was provided with meaningful representation and the effective assistance of counsel under both the Federal and State standards.

Nevertheless, the Court will next address the defendant’s failure to demonstrate actual prejudice under the second prong of the test. Thus, the defendant is unable to state, with any degree of certitude, that his deportation would not result but for the conviction under this indictment.

Finally, the fact that the defendant was not advised by the Court at the time of his guilty plea that the conviction might result in his deportation, shall not be deemed to effect the voluntariness of the plea, the validity of the conviction, and it does not afford the criminal defendant any rights in a subsequent proceeding relating to the defendant’s deportation or exclusion. A Court must only advise a defendant of “direct consequences” as a result of the plea, and deportation has been found to be a “collateral” consequence.

Accordingly, the defendant’s motion to vacate the judgement of conviction is denied.

Here in Stephen Bilkis and Associates, we render quality advice to our clients for their specific needs. We have Queens County Petit Larceny attorneys, who shall assist and represent you with your court cases filed. For other relevant matters, you can also consult our Queens County Criminal lawyers.

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