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Defendant, in his affidavit, states that he came to the United States from Jamaica in 1992


This is a proceeding wherein the defendant moves to vacate his judgment of conviction pursuant to CPL § 440.10(1)(h) on the grounds that he did not knowingly and voluntarily enter his guilty plea due to his ineffective assistance of counsel. It is his contention that his attorney failed to properly advise him about the immigration consequences of pleading guilty as required by Padilla v Kentucky.

The court’s review of the moving papers, the People’s opposition, the Court file and the relevant case and statutory law, it finds that defendant’s motion should be denied for the reasons stated below.

The police observed on 11 August 2009 that the defendant was driving while talking on a cell phone in the vicinity of Remsen Avenue and Church lane, in Brooklyn. The officers pulled the defendant over. They observed that the defendant threw an object into the rear of the vehicle. The officers smelled Marijuana as they approached the defendant’s vehicles and recovered a clear Ziploc Bag of Marijuana in the backseat, which weighed in excess of eight ounces. The officers conducted a Department of Motor Vehicles computer check which revealed that the defendant’s driver’s license was suspended.

Defendant was charged with one count of each of the following crimes: Criminal Possession of Marihuana in the Third Degree (P.L. § 221.20); Criminal Possession of Marihuana in the Fourth Degree (P.L. § 221.15); Criminal Possession of Marihuana in the Fifth Degree (P.L. § 221.10[2]); Aggravated Unlicensed Operation of a Motor Vehicle in the Third Degree (V.T.L. § 511.1[a]); and Use of Mobile Telephones (V.T.L. § 1225-C [2][A]). On 7 September 2010, defendant pleaded guilty to Criminal Marijuana Possession in the Fourth Degree (P.L. § 221.15). On 19 October 2010, defendant was sentenced to three years probation and his license was suspended for 6 months.

Defendant, in his affidavit, states that he came to the United States from Jamaica in 1992 at the age of 15 years old. On 14 January 1998, he became a Lawful Permanent Resident of the United States. He contends that he has no ties or relations to Jamaica. He contends that his family lives here and has a close relationship to his daughter who is nine years old. He also asserts that he did not have the chance to have any in-depth conversation regarding his plea, and only met with A a few times of which they did not discuss the plea implications or his potential immigration consequences. Furthermore, defense counsel contends that the defendant has a learning disability and states it was due to this learning disability that he was not able to comprehend what was being asked during his plea colloquy and would not have plead guilty had he been informed of the potential immigration consequences.

The United States Bureau of Immigration and Customs Enforcement (ICE) states in a letter submitted by the People that defendant has been a permanent resident of the United States since 14 January 1998. The defendant has had previous interactions with the criminal justice system, and was subject to removal hearings once prior. The people presented evidence of a cancellation of a removal proceeding dated 2 April 2007. In 2012 the defendant was detained by ICE because of his instant conviction and has since commenced removal proceedings.

The court then imposed the sentence three years probation. Defendant did not file a notice of appeal from his judgment of conviction.

The defendant claims that due to his learning disability he did not understand the ramifications to what he was pleading to, and that he was never informed about the potential immigration consequences that the plea may contain. Defendant states in his affirmation that had he known that pleading guilty would have affected his ability to live in the United States or it would subject him to deportation, he would not have accepted the plea and instead would have gone to trial. This is true even in light of the fact that he would have risked harsher punishment if the prosecutor succeeded in proving their case.

Defendants statements are at odds with A’s recollections of events. The people submit an affirmation from A in which A outlines that he spoke to the defendant on at least eight accessions, and that from his background as a former special education teacher in conjunction with his 25 years as a criminal defense attorney he believed that defendant understood the consequences of his plea. Furthermore, he stated that it was because of defendant’s previous interactions with the criminal justice system and the strength of the People’s case against him that they both agreed that the best strategy would be one to negotiate a misdemeanor plea in which the defendant would avoid a period of incarceration. A stated that the defendant was aware that even taking the misdemeanor plea could render him deportable, if the immigration authorities focused on him.

Based on People v Elufe, People v Fiumefreddo and People v Harris, to effectuate a valid guilty plea the defendant must enter the plea knowingly, voluntarily, and intelligently. When there is a question as whether the defendant’s factual recitation comports to an essential element of the crime pleaded to, the court may not accept the plea without making further inquiry to ensure that defendant understands the nature of the charge as held in the case of People v. Lopez. After the Court was told of defendant’s statement to the department of probation, the court conducted a further inquiry as to whether or not the defendant wanted to rescind his plea. The Court was satisfied by the defendant’s response and his response did not indicate he was unable to understand the nature to what he was pleading to. The colloquy in conjunction with defendant’s former counsel statements aver that the defendant’s plea was voluntary, knowingly, and intelligently given despite his learning disability.

It was held in Strickland v Washington and People v Linares that a defendant in a criminal proceeding is constitutionally entitled to effective assistance of counsel. To prevail on an ineffective assistance of counsel claim under the federal standard, the defendant must first be able to show that counsel’s representation fell below an objective standard of reasonableness based on prevailing professional norms. It is his burden to establish that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. Counsel is strongly presumed to have exercised reasonable judgment in all significant decisions.

Again, in Strickland, it was held that the Defendant must affirmatively prove prejudice by showing that were it not for counsel’s unprofessional errors, there is a reasonable probability that the outcome of the proceeding would have been different. A reasonable probability in this context is probability sufficient to undermine the outcome. Furthermore, in assessing prejudice under Strickland, the likelihood of a different result must be substantial, not just conceivable. Thus, the Strickland standard is highly demanding and rigorous. Where a defendant enters his plea upon the advice of counsel, he must show that, but for counsel’s errors, he would not have pleaded guilty and instead insisted on going to trial.

In New York and based on the case of People v Turner, a defendant’s right to the effective assistance of counsel is violated when defendant’s counsel fails to meet a minimum standard of effectiveness, and defendant suffers prejudice from that failure. To meet this standard, defendant must overcome the strong presumption that he was represented competently. 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, reveal that the attorney provided meaningful representation the constitutional requirement will have been met as was held in People v Baldi. In the context of a guilty plea, a defendant has been afforded meaningful representation when he receives an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel.

While the deficiency point under State law is identical to that of Strickland, the prejudice in New York is somewhat more favorable to defendants. The claim of ineffectiveness is ultimately concerned with the fairness of the process as a whole rather than its particular impact on the outcome of the case as held in People v Benevento. The question is whether the attorney’s conduct constituted egregious and prejudicial error such that defendant did not receive a fair trial. Thus, a defendant’s showing of prejudice is a significant but not indispensable element in assessing meaningful representation.

In Padilla v Kentucky, the Supreme Court held that defense counsel has an affirmative duty under the Sixth Amendment to provide correct advice to a non-citizen client about the risk of adverse immigration consequences of a guilty plea.

The People argue that counsel’s advice about the possibility of deportation was accurate because deportation was not an automatic consequence of defendant’s guilty plea so long as the defendant stays out of the scope of immigration authorities.

The court emphasizes that to prove that he suffered prejudice, a defendant must present evidence establishing a reasonable probability that he would have rejected the plea had he been advised that deportation was a mandatory consequence of his guilty plea. In the case at bar, the defendant offers only the self-serving statement that, had he received adequate immigration advice, he would have rejected the plea offer and proceeded to trial. The court notes that it is all too tempting for a defendant to second-guess assistance after conviction or adverse sentence. Defendant’s statement is insufficient in and of itself to sustain the burden of showing prejudice. A claim of prejudice must be corroborated independently by objective evidence, as a claim that defendant would have gone to trial but for counsel’s ineffectiveness, standing alone, does not establish prejudice under Strickland. Here, defendant’s bare claim that he would have insisted on proceeding to trial is not sufficient.

The court notes that the facts of the case diminish the probability that defendant would have gone to trial even if counsel had informed him that deportation would have resulted from his plea. First, the People presented strong evidence of defendant’s guilt. Second, defendant received a very favorable sentence of three years probation. Had he been convicted of the top charge at trial, he would have faced a maximum two years of incarceration. As the goal of the plea negotiations was to avoid any period of incarceration, the generous plea bargain only weakens his claim of prejudice and serves to reflect an overall effective performance by counsel.

Accordingly, the court denies defendant’s motion in its entirety.

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