People v Caesar

[*1] People v Caesar 2005 NY Slip Op 51112(U) Decided on March 11, 2005 Supreme Court, Kings County Rienzi, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 11, 2005
Supreme Court, Kings County

PEOPLE OF THE STATE OF NEW YORK, Plaintiff,

against

Marvin Caesar, Defendant.



3298/91

Leonard P. Rienzi, J.

Convicted, upon respective pleas of guilty, of criminal possession of stolen property in the third degree (Indictment No. 3298/1991) and unauthorized use of a vehicle in the third degree (Superior Court Information No. 12557/93), defendant was sentenced to separate periods of incarceration of eight (8) months and seven (7) months, respectively [FN1]. In the present application, defendant, a native and citizen of Guyana and a resident alien since 1987, moves, pro se, to vacate these convictions pursuant to CPL 440.10(1)(h) on the ground, inter alia, of the alleged ineffective assistance of counsel, viz., "trial counsel's failure and [that of] the Court as well to advise [defendant] that [he] could be removed or deported for life based upon the[se] conviction[s] . . . even though counsel was fully aware of [defendant's] alien status" (Petition, para [2]).

The motion is denied.

As a matter of both Federal and State constitutional law, the mere failure to advise a pleading defendant about the possibility of deportation does not render a guilty plea involuntary or the assistance of counsel ineffective, particularly in the absence of any demonstrable prejudice (see People v McDonald, 1 NY3d 109, 114; People v Ford, 86 NY2d 397, 404; cf. CPL 220.50[7]). Accordingly, defendant's challenge to counsel's efficacy cannot be sustained were, as here, the petition, which is unsworn (see CPL 440.30[1], [4][b]), is wholly devoid of any [*2]objective facts demonstrating, e.g., that defendant would have insisted on going to trial but for the cited omission (see People v Rodriguez, 186 AD2d 632; People v Hayes, 186 AD2d 268; People Ahmetovic, 157 AD2d 489; cf. People v McDonald, 1 NY2d at 115). Moreover, this defect in pleading has not been cured by defendant's submission of an unsworn supplemental "pleading" (entitled, "Motion for Leave to Amend Response with Amendment")[FN2] in which he states, for the first time and in conclusory fashion, that he is innocent of the charges and had an unspecified "viable defense" (see CPL 440.30[4][b]). Nor is his argument advanced by the addition of the claim that counsel, rather than simply failing to inform him about the deportation consequences of his guilty pleas, affirmatively misrepresented to the defendant that a plea of guilty would not result in his deportation (cf. United States v Couto, 311 F3d 179, 188 [2d Cir 2002]). Again, defendant offers nothing in support these allegations other than his own unsworn statements (see CPL 440.30[4][b] and the unexplicated claim that "it is clear that being deported to the country of his origin was the defendant's main concern". However, no facts have been alleged to support of this avowed concern, nor defendant's other "new" assignments of error, i.e., a claimed violation of the Vienna Convention, the failure to request a judicial recommendation against deportation (JRAD), an unauthorized waiver of defendant's right to testify before the grand jury and an allegedly inadequate pre-disposition investigation of the charges by his then-attorney [FN3].

As pertinent, CPL 440.30(1) provides that the papers submitted on a motion to vacate a judgment pursuant to CPL 440.10 must contain sworn allegations in support of each of the essential facts, whether by defendant or by another person or persons. Accordingly, defendant's failure to provide this Court with even a single sworn averment supporting or tending to support any of his factual claims warrants denial of the motion without a hearing pursuant to CPL 440.30(4)(b).

Moreover, even assuming that defendant's moving papers had been properly sworn, his request for vacatur would still be unavailing. As previously noted, it is well settled that the failure to apprise a defendant about the collateral consequences of a guilty plea does not constitute the ineffective assistance of counsel under either State or Federal law (see e.g. People v Ford, 86 NY2d at 403-404; accord People v McDonald, 1 NY3d at 114; United States v Couto, [*3]311 F3d at 188).

As for defendant's belated assertion of the facially inconsistent claim that counsel advised him incorrectly about the deportation consequences of admitting his guilt, this Court can only regard said claim as dubious in light of its timing, i.e., in papers responsive to the negation of defendant's original claim in respondent's opposing papers (cf. People v Mendoza, 82 NY2d 415, 432). However, even accepting this claim at face value, defendant has failed to satisfy the second prong of the so-called Strickland test (Strickland v Washington, 466 US 668) for evaluating ineffective assistance of counsel claims under the Federal Constitution, i.e., that there exists a reasonable probability that, but for counsel's alleged errors, defendant would not have pleaded guilty and would have insisted on going to trial (see Hill v Lockhart, 474 US 52). In this case, defendant has proffered in support only unsworn conclusory allegations of innocence, unstated defenses and the primacy of avoiding deportation, none of which constitute objective facts sufficient to make a prima facie showing of prejudice (see People v McDonald, 296 AD2d 13, 19, affd 1 NY3d 109 [citing the absence of any colorable claim of innocence as a basis for rejecting defendant's claim of prejudice]; cf. People v Mendoza, 82 NY2d at 425-426; see also People v Stewart, 307 AD2d 533, 535). Wholly lacking from the moving papers is any analysis of (1) the strength of the People's case, (2) available defenses and/or (3) the likelihood of an acquittal at trial [FN4].

This State's constitutional standard of "meaningful representation" similarly includes a prejudice component, but one which focuses on the fairness of the process considered as a whole (see People v Henry, 95 NY2d 563, 566). Here, as regards the more serious of the two convictions under review, defendant had been indicted for criminal possession of stolen property in the third degree (Penal Law § 165.50), a D felony, for which he might have sentenced to as many as seven (7) years in prison (Penal Law § 70.00[2][d]). Nevertheless, and notwithstanding his two prior misdemeanor convictions, defendant's plea bargain included a sentence of only eight (8) months in jail (see Penal Law § 70.00[4]). Turning to defendant's misdemeanor conviction, it is undisputed that defendant received only seven (7) months notwithstanding a record which included two misdemeanors and a felony conviction. As the Court of Appeals has observed (People v Ford, 86 NY2d at 404), "[i]n the context of a guilty plea, a defendant has been afforded meaningful representation when he or she receives an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel". In the absence of any sworn allegations tending to show that defendant would not have accepted either plea had he been properly apprised of the immigration consequences of conviction, there is nothing before the Court which would warrant a hearing on the issue of inadequate counsel (see e.g. People v Rodriguez, 188 AD2d at 623). [*4]

Defendant's remaining contentions are similarly unsupported by sworn allegations of fact and do not compel a contrary result.

This constitutes the Decision and Order of the Court.

E N T E R,

J.S.C. Footnotes

Footnote 1:In addition to the foregoing, defendant lists the following convictions as part of his criminal record in New York: (1) unauthorized use of a vehicle in the third degree (July 11, 1990), (2) unauthorized use of a vehicle in the third degree (July 2, 1991), (3) attempted unauthorized use of a vehicle in the third degree (August 27, 1992), (4) attempted petit larceny (December 20, 1993), (5) aggravated unlicensed operation of a motor vehicle (June 24, 1994), (6) attempted grand larceny in the fourth degree (September 22, 1995), (7) forgery in the third degree and resisting arrest (July 14, 1998) and (8) disorderly conduct (April 24, 2003).

Footnote 2:Although, as a procedural matter, this supplemental submission is neither authorized by the CPL nor an appropriate vehicle for the introduction of new agreements or grounds for relief (see e.g. Couter v East Nassau Med. Group, 270 AD2d 381, 382; Damasch v Bifulco, 184 AD2d 415, 417), the Court has chosen to overlook this defect in view of defendant's pro se status.

Footnote 3:In point of fact, JRADs were eliminated by Congress in 1990 (see United States v Couto,311 F3d at 189), and it is well settled that the mere failure to effectuate a defendant's intention to testify before a grand jury does not constitute the ineffective assistance of counsel in New York (see People v Venable, 7 AD3d 647, 648 and cases cited therein). Thus, two of defendant's newest claims are patently lacking in merit.

Footnote 4:Pertinent to the foregoing, defendant does not take issue with the People's representation that in both instances he was observed inside stolen vehicles with either a "popped" ignition or a damaged steering column, and with or near tools associated with automobile theft, including screwdrivers, a "slap" hammer, a crowbar and a "slide" hammer.