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The defendant was charged with attempted murder


The defendant moves for an order vacating the judgment of conviction on the ground that he was denied effective assistance of counsel in that his attorney failed to advise him of the risk of deportation when he pled guilty. The Probation Department opposes the motion. For the reasons stated below, the motion is denied.

The defendant was charged with attempted murder in the second degree, attempted assault in the second degree and assault in the second degree, for acts committed against his wife. After extensive negotiations and after a pre-trial suppression hearing, the defendant pled guilty, before another judge of the County court, to one count of robbery in the second degree, in full satisfaction of all the charges contained in the indictment. The agreed upon sentence was a term of imprisonment of six (6) months, followed by a period of five (5) years probation, with intensive supervision as a domestic violence offender. An order of protection was issued for a period of five (5) years. On April 4, 2005, the negotiated sentence was imposed.

The defendant remained under intensive probation supervision and the court received updates, until a domestic violence incident occurred on November 3, 2005. A violation of probation was filed and a warrant was issued. The defendant was arrested and indicted for assault in the second degree and criminal contempt in the first and second degree (for violating the order of protection issued on April 4, 2005). After a jury trial, the defendant was convicted of criminal contempt in the first degree. Thereafter, the court imposed a sentence of a term of imprisonment of 2-4 years. Further, on the violation of probation, the court imposed a term of imprisonment of two (2) years to run consecutive to the other sentence, and a 2 year period of post release supervision.

The defendant appealed from his conviction which was affirmed. Leave to appeal was denied. In addition, the defendant appealed from the re-sentence on the instant indictment, in which the court revoked the sentence of probation and imposed a term of imprisonment, and that sentence was affirmed. Leave to appeal was denied.

The defendant is currently in federal custody subject to an order of deportation and alleges that his attorney misadvised him that the plea in the present indictment would not have an effect on his immigration status. He further states that had he known the plea could be used in a deportation proceeding, he would not have pled guilty. He also states that he did not learn of the problem until he was placed under arrest by ICE. The motion papers present a series of repetitive paragraphs reciting counsel’s purported shortcomings which the defendant presents as the basis of his ineffective assistance of counsel claim. The defendant makes a cursory mention of a related case in support of his contention that the counsel’s purported failure to advise him of the deportation risk constitutes ineffective assistance of counsel.

Unfortunately, the answer from the Department of Probation does not provide much assistance to this court in the resolution of the motion. Counsel incorrectly argues that the motion is untimely, citing the CPL section applicable to appeals, and not to post judgment motions. In fact, a constitutional claim of ineffective assistance of counsel may properly be raised at the current time under the present circumstances.

In the present matter, the defendant alleges that he would not have pled guilty but for the counsel’s incorrect advice about the possibility of deportation. This allegation has absolutely no credibility. To begin with, this is an allegation made by the defendant without any supporting evidence at all. The defendant’s allegation that he specifically asked his attorney if the plea agreement would have an effect on his immigration status and that it will have no effect on his immigration status is highly suspect. It should be noted that throughout his apparent boilerplate motion papers, the defendant refers to his attorney as he. A cursory examination of the court file shows that his attorney was a woman on both matters, a fact which he might be expected to remember. And a fact which undercuts any credibility the allegations might have had.

The court has reviewed the plea minutes, which show that during the plea allocution, the judge very specifically explained to the defendant that it was possible he could be deported or paroled for deportation. When the court asked if he understood that, the defendant indicated that he did. Thus, even if counsel did not specifically advise the defendant of the potential for deportation, the trial judge made it completely clear. As such, the defendant’s claim that he did not know until his arrest that he could be deported is wholly unbelievable.

Nor can the criminal defendant credibly claim that he would not have pled guilty if he knew of the deportation possibility of the plea. In fact, by pleading guilty to a lesser charge, the defendant received a highly favorable sentence, involving no additional jail time, since he had been incarcerated since the commencement of the proceedings and received credit for that time. Had there been a trial and a conviction of attempted murder in the second degree, a violent felony offense, the defendant faced a substantial prison sentence and certain deportation. Under current the New York law, when an attorney secures such an advantageous plea agreement, that attorney cannot be deemed to be ineffective. It is not likely that the negotiated plea and original sentence of probation would have been considered an aggravated felony in accordance with federal statute, such as would have required deportation.

Although it is clear that, under certain circumstances, ineffective assistance of counsel results when a defense attorney fails to inform the defendant that the conviction for a particular offense would require his deportation, those circumstances do not exist here. First, there is no credible evidence that the attorney did not advise the defendant of the immigration consequences; second, the drug defendant was thoroughly advised of the immigration consequences of the plea by the judge and indicated his understanding of the situation. But even assuming that counsel did not properly advise the defendant, to succeed on this type of claim, the defendant must show that rejection of the plea bargain would have been rational under the circumstances.

Considering the defendant’s claims under the New York standard, a defendant receives effective assistance of counsel when the defense attorney provides meaningful representation under the circumstances that existed. There is no requirement of prejudice, as under the Federal standard but the court finds that the defendant could not meet that standard in any event. The defendant received meaningful representation by counsel obtaining a plea that eliminated any additional jail time and no cognizable prejudice can be shown. Counsel’s conduct was well within the wide range of professionally competent assistance and in this case, there is no reasonable probability that, but for counsel’s errors, the defendant would have rejected the plea offer and gone to trial.

At the court’s request, the Probation Department submitted a supplemental affirmation detailing their efforts to ascertain the actual basis of the deportation proceedings, since there was no information provided in the initial answer to the motion. The probation’s liaison to the Department of Homeland Security, the umbrella agency for ICE, received information that the defendant was being deported because he violated his probation and was re-sentenced to two to four years consecutive. Thus, it appears that the original plea is not the trigger for the deportation, but the defendant’s subsequent unlawful conduct and sentence is. This further bolsters the court’s finding that the counsel was effective in obtaining the very favorable plea agreement. As such, there being no legal basis for granting the relief sought, the motion is denied in its entirety.

Lawmakers continue to find ways in making the community a safe place for every individual. When citizens do otherwise, they not only violate the law but they contribute a lot in giving a bad image to the community. If you want to hire a Kings County Order of Protection Lawyer or a Kings County Criminal Defense Attorney, call Stephen Bilkis and Associates during weekdays.

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