People v Nikovic
Annotate this CaseDecided on July 24, 2006
Supreme Court, Richmond County
The People of the State of New York, Plaintiff,
against
Gani Nikovic, Defendant.
SCI 90149-2001
Appearances:
Anthony C. Emengo, for defendant.
Karen Fisher McGee and Anne Crick, for plaintiff.
Alan J. Meyer, J.
This decision follows a hearing ordered on April 3, 2006 and conducted on May 11, 2006 resulting from a defense motion entertained by the court pursuant to CPL 440.10.
In the preceding decision of April 3rd, this court addressed a number of issues raised by the defendant based upon his underlying claim that he was misadvised by both his defense counsel and the court concerning the deportation consequences of his plea to PL 110/265.02(3), Attempted Criminal Possession of a Weapon (defaced) in the Third Degree, a class E non-violent felony, entered on December 20, 2001. The defendant was subsequently sentenced to five years probation on February 15, 2002.
In his motion on February 2, 2006, the defendant complained, with supporting detail, that he is now undergoing deportation proceedings as a result of a plea which he only entered because he was improperly advised and unaware that his conviction would make him an "aggravated" felon under immigration law and thereby subject to "certain" deportation.
In a recent Manhattan Supreme Court decision involving a plea to a misdemeanor, People v. DeJesus, NYLJ 5/31/06, 24 (col.1), the court noted that deportation is held to be a collateral consequence of a guilty plea and that a defendant need not be advised about it, citing to People v. Ford, 86 NY2d 397, as well as a number of federal cases.
This court agrees and also cited to People v. Ford, supra, in its previous decision. However, in the matter before this court the defendant raised the issue of being misadvised citing to federal law, which claim is governed by People v. McDonald, 1 NY3d 109, and requires a different analysis than the claim of not being advised at all, or even the issue of not receiving meaningful representation under the New York standard. See, also, People v. Henry, 95 NY2d 563; People v. Benevento, 91 NY2d 708; People v. Baldi, 54 NY2d 137.
Although the defense also questioned the constitutionality of New York's CPL 220.50, subd. 7 felony deportation advisory in light of recent federal cases distinguishing the difference between what is described as "mandatory" deportation for "aggravated" felons and "possible" deportation for others, this court declined to reach the constitutionality of the advisory under the New York statute for several reasons, which were explained in the prior decision. For those reasons, notice was not provided to the Attorney General and constitutionality was not argued at [*2]the hearing. See, Executive Law §71, CPLR 1012 and Matter of McGee v. Korman, 70 NY2d 225.
In the April 3rd decision, the court narrowed the focus of the defendant's contentions to the remaining issue of ineffective assistance of counsel under the federal standard as enunciated in People v. McDonald, supra, and, in the absence of any statement by that counsel, ordered a hearing to determine whether prior defense counsel affirmatively misrepresented to the defendant the deportation consequences of his plea and, if so, whether there is a reasonable probability that but for counsel's representation, the defendant would not have pled guilty and would have insisted on going to trial. See, People v. McKenzie, 4 AD3d 437.
During an earlier appearance for motions and oral arguments, the court requested present defense counsel to provide any documents or pleadings submitted to the immigration authorities by the defendant, in order to clarify his past and present status in this country. Before the hearing began, defense counsel produced a number of immigration papers, before the court and prosecutor, for review in making this determination. The identity of these documents will be noted throughout the decision whenever they are referred to.
At the hearing on May 11th, previous counsel, after the defendant waived all attorney/client privileges, candidly acknowledged that prior to the plea he told his former client, Mr. Nikovic, that if the, "Immigration authorities became aware of his felony conviction ... and if they caught up with him, he would be subject to removal." (Hearing minutes, p. 23). He further explained that in his experience there were "mechanisms in place" in the Department of Corrections and other such agencies to alert the immigration authorities of a defendant's status. He also stated that he advised against the defendant seeking permission to travel out of the country because he, "didn't believe he would get back into the country if he left." (See first Nikovic decision dated April 3, 2006 addressing the issue of travel on page 2).
There were also some heated exchanges between former and present defense counsel concerning former counsel's knowledge of immigration law, his inability to locate an older case file, whether he recorded conversations with his client and his acceptance of CPL 710.30 notice.
Under questioning by the defense, prior counsel was asked if he would have charged his client more for a trial and whether Mr. Nikovic told him that, "money was hard to come by." Counsel indicated that a trial would have cost three or four thousand dollars more and replied that he did not perceive the defendant to be a rich man. (Hearing minutes, p. 47, 48). It may be noted that in documents submitted in 1998 to the immigration authorities in a previous challenge to deportation and provided, as noted above, by current counsel to this court, the defendant listed assets of two hundred fifty six thousand dollars. (Form EOIR-40, Application for Suspension of Deportation).
In response to questions by the Assistant District Attorney, previous counsel indicated that based upon his trial experience he believed that the prosecution had a strong case for the gun possession (Hearing minutes, ps. 59, 72) and he advised his client that if he lost at trial and went to jail, he would be removed at the conclusion of his sentence, while if he accepted the plea offer and received probation, there was a likelihood he could remain here until the authorities "caught up with him." (Hearing minutes, p. 66). He said his client seemed concerned about providing for his children and that the defendant, "expressed to me his fervent request that he not go to jail." (Hearing minutes, p.71).
Based upon testimony, it cannot be said that at the time of the plea, the defendant's prior [*3]counsel claimed to be an expert on immigration law, discretionary relief from deportation, or the issue of aggravated felonies, which even today are a subject of controversy among the experts. What is credible is that counsel understood that there would be deportation consequences for a felony conviction of gun possession and conveyed to his client that he would be subjected to deportation whenever the immigration authorities discovered such conviction.
The People, in papers submitted following the hearing, argue that there was no affirmative misrepresentation and that Mr. Nikovic pled guilty with a full understanding of the options before him, citing North Carolina v. Alford, 400 US 25.
The defense argues that prior counsel did not advise the defendant that as an aggravated felon he would "certainly" be deported based on his guilty plea, only that deportation was a possibility if immigration officials would "catch up" with him. The importance of this distinction derives from federal case law referred to in the our preceding decision. See, e.g., Zhang v. U.S., 401 F. Supp. 2d 233, which addresses the propriety of advice given by courts to aggravated felons and opens to question the integrity of New York's CPL 220.50, subd. 7.
Following testimony by prior counsel, the defendant took the witness stand. He testified that his prior attorney never told him that he would eventually be deported and that he would not have taken the plea if he had known. (Hearing minutes, p. 84).
In response to the question as to whether he told the police the guns were his, the defendant stated that at the time of the incident when he returned to his house, "the police already got my guns." When qualified by current counsel, he explained that he did not mean to say the guns were "mine" and that his English wasn't so good. (Hearing minutes, p. 85). He also indicated he thought his previous attorney would get the charges dropped to a "misdemeanor" and stated his belief that a misdemeanor was not "deportable" while a "felony" was. (Hearing minutes, p. 88).
In response to further questioning by defense, the defendant stated that he thought he was pleading to a misdemeanor and that he would not go to jail, would not be deported and that his job would not be affected. He said his earlier lawyer told him that a trial would cost a lot more money and at the time he did not make much money.
In response to questions by the Assistant District Attorney, the defendant said he didn't remember being told by the court that he was pleading to a felony or admitting to possession of a firearm with the serial number scratched off. He said he pled guilty, "because my lawyer told me to plead guilty." (Hearing minutes, p. 102). When asked if what he said in open court at the time of the plea was not correct, the defendant stated, " I had to plead guilty. That's all I needed." When asked if he lied, he stated, "Yes." (Hearing minutes, p. 107). When asked if he admitted to the Department of Probation, in an interview, that he had used the guns to go hunting "upstate", he indicated that he never made that statement.
The defendant acknowledged that he first entered the United States by illegally crossing the border from Mexico without a visa. (Hearing minutes, p. 114). He further stated that his original attorney in this case did not discuss the possibility of going to trial or the possible jail sentence he was facing. He also responded that he did not remember the court repeatedly using and explaining the word felony to him without any reference to the word misdemeanor at the time of his plea or his sentence. The official transcript of the plea totally contradicts the defendant's assertion.
There was some additional discussion as to whether any other witnesses would be called [*4]and the defendant's brother took the stand to state only that he hired prior counsel but did not discuss the issues with him at any length. The hearing was then concluded with the opportunity for the parties to submit further arguments in writing prior to this decision.
Based upon the proceedings held, the Court finds it credible that the defendant's original defense counsel advised the defendant (as did the Court) that he was pleading guilty to a felony and that he also told him that when the immigration authorities learned of it they would move to deport him. This advice cannot be said to have been misleading and was, in fact, prophetically true in that it was not until years later when the defendant was incarcerated for an alleged violation of probation that the pending deportation proceedings were instituted against him.
While the distinctions made for aggravated felonies under federal immigration law with respect to restrictions on discretionary relief may not have been detailed to the defendant, the advice he did receive was essentially correct.
It may also be noted that the defendant was not charged with an aggravated felony in the 2005 deportation notice shown to this court and that his current applications for discretionary relief in the immigration court have, thus far, apparently been entertained.
Although the defendant's entire argument before this court is predicated on his being convicted of what qualifies as an aggravated felony, papers prepared to contest pending deportation proceedings by the defendant's current immigration attorney and provided by the defense, assert as part of the requirement for relief, "I have been a lawful resident alien for 5 or more years, have 7 years of continuous residence in the United States and have not been convicted of an aggravated felony." (Form EOIR-42A, Application for Cancellation of Removal for Certain Permanent Residents, No.17).
It is only by examining the Internal Revenue Code, as noted in our earlier decision, that an indication can be found that the defendant may be classified as an aggravated felon by virtue of the defaced condition of the firearm he possessed.
In papers submitted following the hearing, present defense counsel seems incredulous that prior counsel accepted the defendant's admissions in CPL 710.30(1)(a) notice without, "interviewing" the officers or that he did not further "investigate" the charges. He urges that Mr. Nikovic was not properly advised, did not understand English very well, was discouraged by the high cost of trial and was rushed into taking a plea that he did not understand.
By his testimony, prior counsel indicated that he did warn his client of deportation, did evaluate the People's case and was most concerned that an indictment was imminent, which could lead to incarceration and immediate tracking by the immigration authorities. Counsel also expressed repeated concern that the highest count with which the defendant was originally charged was a violent felony which, as the prosecution points out, carried a potential sentence of up to 15 years in prison.
The People's post hearing papers argue that the defendant's spouse, who originally complained that the defendant assaulted her and threatened to shoot her, could have been compelled to testify but that even if she did not, there was independent evidence to support a felony charge for firearms possession.
While the defendant's words and claims are contradictory and questionable, his actions during the events in question also help to indicate his beliefs and intentions.
Clearly, the defendant has not shown fear of the U.S. immigration authorities either in entering this country, in remaining here, or in visiting his own native country despite claims of [*5]persecution by the authorities therein.
It is also evident that the defendant understood that by going to trial he would be risking a state prison sentence, while by accepting the plea he would receive only probation. Based on the record, the defendant had to be aware that a criminal conviction would diminish his chances of contesting deportation as he had in the past, even if the nuances of aggravated felonies had not been described to him.
Although the defendant relates that he is concerned that his family and children would be left unsupported and destitute without him, he lists approximately two million dollars in currently owned local property and assets in immigration documents provided to this court (Form EOIR -42A, Application for Cancellation of Removal for Certain Permanent Residents, filed in 2006). He also notes the presence of many close relatives in the immediate area, which indicates that his family is not entirely without help or support.
The defendant's effort to characterize himself as lacking in comprehension is belied by his accumulation of assets, his ownership of various businesses and his employment of a number of different attorneys, which points to a good deal of aptitude. The corporate minutes for the defendant's car service provided in immigration background papers also suggest greater familiarity with technical and legal issues than the "fifty-fifty" understanding of English he now acknowledges on the witness stand. In all prior appearances, the defendant has indicated that he understands and is able to communicate in English without additional clarification of anything said to him. He has been interviewed by the Criminal Justice Agency and the Probation Department and has participated in his arraignment, plea, sentence and alleged violations of probation without need of an interpreter.
Throughout the course of the events in question, what the defendant has most genuinely exhibited is a paramount concern with restrictions on his liberty and with avoiding being placed in jail. During his probation, reports indicate that he didn't want to attend counseling or participate in programs because he didn't want to take time from his enterprises and activities. Even now, the defendant seems to be as distressed about being kept in custody as with being subjected to deportation.
Evidently, the defendant is not a stranger to deportation proceedings and has undergone protracted litigation to avoid deportation in the past. At the time of his plea, he may readily have consulted an immigration attorney who had worked for him previously to be sure of the immigration consequences of entering the plea, if he had considered that to be a controlling factor in accepting it. He certainly knew the difference between hiring an immigration lawyer to handle his immigration matters and hiring a criminal lawyer to handle his criminal matters. The defendant has had a number of attorneys representing him in the immigration court who are not the same attorneys who have represented him in this court.
By his guilty plea, the defendant was assured of a probationary sentence with no incarceration and the possibility of remaining here until his legality was challenged, which was the same course of action he chose when he originally crossed the Mexican border and stayed here for many years before fighting deportation when his status was finally discovered.
Accordingly, and for all of the foregoing reasons and analysis, the court does not find that the defendant pled guilty due to an affirmative misrepresentation by his prior counsel, or that there is a reasonable probability that he would have insisted on going to trial had he been told all of the legal distinctions applicable to the immigration treatment of aggravated felons. The [*6]defendant has already admitted that he lied in order to benefit himself and his current claims in this court are contradicted by his claims in the immigration forum. His testimony at the hearing is further contradicted by the record of his sworn testimony in earlier proceedings.
As such, the defendant's motion to vacate the judgement against him is hereby denied and his conviction and sentence remain as imposed.
In order to avoid the difficulties presented by these issues in future cases, it is recommended that criminal practitioners, as well as courts, more thoroughly familiarize themselves with the immigration consequences of criminal actions.
This Opinion constitutes the Decision and Order of the Court.
Dated: July 24, 2006
Staten Island, New YorkHon. Alan J. Meyer
Acting Supreme Court Justice
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