People v Artusa

[*1] People v Artusa 2006 NY Slip Op 51594(U) [12 Misc 3d 1196(A)] Decided on August 16, 2006 Criminal Court, Kings County Gerstein, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 16, 2006
Criminal Court, Kings County

The People of the State of New York, Plaintiff,

against

Frank Artusa, Defendant.



2005KN003209



Charles J. Hynes, District Attorney (Jessica S. Haaz, Esq. of counsel), for the People. Labe Richman, Esq., for the Defendant.

Michael Gerstein, J.

Defendant moves pursuant to CPL § 440.10(1)(h) to vacate his conviction of Criminal Possession of a Controlled Substance in the Seventh Degree (PL § 220.03), a class A misdemeanor. Defendant alleges that: (1) he was not properly arraigned pursuant to CPL § 170.10; (2) the Court failed to advise him of his rights during his plea allocution; (3) his pre-arraignment conference with counsel was inadequate; (4) the Court failed to advise him of the immigration consequences of his plea; and (5) he suffered from ineffective assistance of counsel, including allegations that his attorney also failed to advise him of the immigration consequences of his plea.

This is a case about the law of unintended consequences. The underlying context of this motion is that Defendant, 46 years old, and a non-citizen resident of the United States since arriving in this country at the age of 3 from Italy, is now the subject of deportation proceedings undertaken by the Department of Homeland Security ("DHS") as a result of this conviction.

Defendant, a resident of New York, was held in custody by DHS in Oakdale, Louisiana starting in August, 2005. (Richman Aff. ¶ 9.) At oral argument, defense counsel advised the Court that Defendant was released from custody in or about July, 2006, pending resolution of the instant matter. We were advised by Defendant's attorney in a conference call today that the removal proceedings against Defendant were then terminated, only to be reinstated should Defendant fail in his challenges to the instant conviction. The misdemeanor conviction which Defendant now seeks to vacate is considered by DHS to be an aggravated felony under U.S. v. Sanchez-Villalobos, 412 F.3d 572 (5th Circuit 2005), cert. denied __ U.S. __, 126 S. Ct. 1142, 163 L. Ed. 2d 1000 (2006), given that it constitutes Defendant's second drug conviction.[FN1] [*2](Richman Aff. ¶ 9.) Defendant asserts that at the time he entered his plea, he was not aware that it would lead to his deportation. (Artusa Aff. ¶ 2.) The People advised the Court at oral argument that at the time Defendant entered his plea, they, too, were unaware that Defendant was not a citizen and was thus subject to deportation based upon his plea.

History

The defendant was initially charged with Criminal Possession of a Controlled Substance in the Seventh Degree (PL § 220.03) and Stopping, Standing, or Parking Prohibited in Specified Places (VTL § 1201(a)(1)(a)), based on allegations that Defendant was observed sitting in the driver's seat of a double-parked motor vehicle at Hemlock Street and Pitkin Avenue at 1:23 A.M. on January 16, 2005 with a ziplock bag of crack cocaine on the floor by his feet. At arraignment on January 17, 2005, Defendant pleaded guilty to Criminal Possession of a Controlled Substance in the Seventh Degree, a class A misdemeanor.

Upon pleading guilty, Defendant was sentenced to a conditional discharge, on the condition that he complete the Treatment Intervention Program ("TIP") and perform one day of community service. When the Court learned that Defendant was enrolled in TIP as part of his sentence on another docket, the sentence on the instant case was vacated and Defendant was re-sentenced on May 9, 2005 to a conditional discharge, on the condition that he complete two days of community service.[FN2]

Defendant was previously convicted of PL § 110/220.03 (Attempted Criminal Possession of a Controlled Substance in the Seventh Degree) in 2003. Thus, the instant case constitutes Defendant's second drug conviction and is deemed an "aggravated felony" under immigration law and grounds for deportation.

I. Defendant's Motion is Procedurally Barred Insofar as it is Based on The Grounds of Inadequate Arraignment and Allocution, and on the Court's Failure to Advise Defendant of Immigration Consequences of His Plea

The Court has the statutory authority to vacate a judgment of conviction if "[t]he judgment was obtained in violation of a right of the defendant under the constitution of this state or of the United States." CPL § 440.10(1)(h). Due process requires that before accepting a [*3]defendant's plea of guilty, the Court must determine whether the defendant's waiver of his rights is voluntary, knowing, and intelligent. Brady v. United States, 397 U.S. 742, 748, 90 S. Ct. 1463, 1469, 25 L. Ed. 2d 747, 756 (1970). The United States Constitution requires that the Court must inform the defendant of certain rights and ask the defendant whether he waives those rights once he has been informed of them in the first instance. Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). These rights include the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront his accusers. Id. In New York, while no specific litany is required, the record must demonstrate that the defendant understood the plea and its consequences, and that the defendant's plea was an intelligent and voluntary choice. People v. Ford, 86 NY2d 397, 657 NE2d 265, 633 NYS2d 270 (1995); People v. Moissett, 76 NY2d 909, 564 NE2d 653, 563 NYS2d 43 (1990); People v. Harris, 61 NY2d 9, 459 NE2d 170, 471 NYS2d 61 (1983).

A. The Failings of the Arraignment and Plea are Apparent on the Face of the Record

1. Defendant's Arraignment and Allocution were Inadequate

The entire exchange between the Court and the defendant at arraignment went as follows: COURT OFFICER: Calling calendar 209, Frank Artusa. Charged with 220.03 and other charges.MS. LENTZ: Marti Lentz, Legal Aid.THE COURT: Is there an offer?MR. COTTO [Assistant District Attorney]: The offer is an A and the TIP Program, and one day of community service.MS. LENTZ: We have a disposition. He has authorized me to plead guilty to violating Penal Law section 220.03 an A Misdemeanor, with the understanding that he would complete the TIP Program and do one day of community service.THE COURT: Is this what you want to do now?FRANK ARTUSA: Yes.THE COURT: The sentence is a conditional discharge, on the condition that you do the TIP Program and one day of community service.There is a surcharge of $140 and a $20 crime victim's fee. The Defendant is unemployed?MS. LENTZ: No.THE COURT: Civil judgment is entered. Thank you.

This Court finds that Defendant's arraignment and allocution were clearly inadequate. Defendant was neither informed of his rights, nor asked to waive them on the record. See Boykin, supra . The record fails to demonstrate that Defendant understood the plea and its consequences. See Ford, supra . Defendant was not informed on the record of the substance of the charges against him, as required by CPL § 170.10(2). As the Second Circuit recently reminded us, "convenience of habit cannot excuse state officials from their constitutional [*4]duties." Hanson v. Phillips, NYLJ April 14, 2006, p. 22 col. 1.[FN3]

2. The Court Failed to Advise Defendant of the Immigration Consequences of His Plea

Is it uncontroverted that the Court did not advise Defendant of any possible immigration consequences of his plea. The trial court has a constitutional duty to inform the defendant of the direct consequences of conviction before accepting his plea of guilty, but need not inform him of the collateral consequences thereof. People v. Catu, 4 NY3d 242, 825 NE2d 821, 792 NYS2d 887 (2005); People v. Ford, 86 NY2d 397, 657 NE2d 265, 633 NYS2d 270 (1995).

It is settled that immigration-related repercussions constitute collateral rather than direct consequences of conviction. Ford, 86 NY2d at 403. Defendant points out that the immigration law changed in 1996, the year after Ford was decided, making it such that deportation is an unavoidable and automatic consequence of an alien's conviction of an aggravated felony. (Richman Aff. ¶ 10.) Because of this change in the law, Defendant argues, immigration consequences should now be considered direct, rather than collateral, and thus the Court should now be required to inform defendants of any immigration consequences before accepting a plea of guilty. The Second Circuit has noted the potential validity of that argument, but has not yet had opportunity to rule on it directly. United States v. Couto, 311 F.3d 179, 189-90 (2d Cir. 2002). There is also some support for considering deportation as a collateral consequence of special significance, and thus to be treated differently from other, less significant collateral consequences. See In re Resendiz, 25 Cal. 4th 230, 247-8, 19 P.3d 1171, 1182-3, 105 Cal. Rptr. 2d 431, 443 (Cal. 2001); Wallace v. Reno, 24 F. Supp. 2d 104, 112 (D. Mass. 1998); People v. Pozo, 746 P.2d 523, 529 (Colo. 1987); Guy Cohen, Weakness of the Collateral Consequences Doctrine: Counsel's Duty to Inform Aliens of the Deportation Consequences of Guilty Pleas, 16 Fordham Int'l L. J. 1094, 1139-40 (1993).

No New York case has held immigration consequences to be considered direct rather than collateral. One Judge of the Criminal Court of the City of New York, New York County, after extensive review of the case law, has recently held that immigration consequences are still considered to remain collateral, as they are not effectuated by the court system itself, and so the Court continues to have no obligation to inform Defendant of them before taking a plea. People v. DeJesus, NYLJ May 31, 2006, p. 24 col. 1 (Crim. Ct. NY Co. 2006) (Ward, J.).

This Court notes the growing concern as to collateral consequences of criminal convictions. Various Bar Associations, as well as Chief Judge Kaye, have issued lengthy reports or otherwise sought to focus attention on the "hidden sanctions," including deportation, of criminal convictions, and have proposed various statutory and administrative changes. See New York State Bar Association Special Committee on Collateral Consequences of Criminal Proceedings, Re-Entry and Reintegration: The Road to Public Safety, at http://nysba.org/collateralreport. Several states and the District of Columbia have enacted laws requiring that the Court advise defendants of immigration consequences of conviction. See Cal. [*5]Pen. Code § 1016.5; Conn. Gen. Stat. § 54-1j(a); D.C. Code § 16-713(a); Hawaii Rev. Stat. § 802E-2; Mass. Gen. Laws § 29D; Ohio Rev. Code § 2943.031(A); Wash. Rev. Code § 10.40.200(2). And although not required in this state, some New York judges are now advising defendants during allocution of immigration consequences of their conviction.

The Court is well aware that in the decade since Ford was decided, DHS, as the successor of the Immigration and Naturalization Service, has become far more active in deporting non-citizens.[FN4] While courts formerly had the power to grant Judicial Recommendations against Deportation under § 212 of the Immigration and Naturalization Law of 1952, this was repealed by the Immigration Act of 1990 and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. See INS v. St. Cyr, 533 U.S. 289, 121 S. Ct. 2271, 150 L. Ed. 2d 347 (2001). There are presently pending before Congress various bills which, if enacted, would further change federal law regarding deportation based on criminal convictions.[FN5] All of these matters may cause our appellate courts to revisit the holding of Ford, or induce the Legislature to enact new law. Until that time, however, this Court remains bound to follow Ford.

B. This Court May Not Grant Defendant's Motions on Those Grounds Which are Apparent on the Face of the Record

1. Defendant's Motion Must be Denied Insofar as it is Based on Those Grounds Which are Apparent on the Face of the Record

The Court must deny Defendant's motion to vacate the judgment against him if "[a]lthough sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's unjustifiable failure to take or perfect an appeal during the prescribed period". CPL § 440.10(2)(c); People v. Cooks, 67 NY2d 100, 491 NE2d 676, 500 NYS2d 503 (1986); People v. Byrdsong, 234 AD2d 468, 651 NYS2d 903 (2d Dept. 1996); People v. Ford, 205 AD2d 798, 613 NYS2d 638 (2d Dept. 1994), aff'd 86 NY2d 397 (1995).

The People do not dispute the inadequacy of Defendant's allocution and arraignment. Rather, they contend that the inadequate arraignment and allocution would be grounds for an appellate court to vacate the conviction on appeal, because "[D]efendant's claims that he was not properly arraigned and that his plea allocution was improper are sufficiently apparent from the record of those proceedings." (People's Mem. ¶ 3.) The People argue that because the inadequacy of Defendant's arraignment and allocution is apparent from the face of the record, Defendant's conviction can be overturned only by an appellate court on appeal, and not by this Court on a motion pursuant to CPL § 440.10. [*6]

The Court's failure to inform Defendant of the direct consequence of conviction when allocuting him on his plea of guilty would be sufficient ground to vacate his conviction pursuant to CPL § 440.10(1)(h), were that failure not based on facts apparent on the face of the record. CPL § 440.10(2)(c). However, because the record leaves no doubt that Defendant's allocution was insufficient, this Court lacks the power to rectify the error upon Defendant's CPL § 440.10 motion unless Defendant was justified in failing to take the issue up on appeal. CPL § 440.10(2)(c).

The record in this case further indicates that the Court did not advise Defendant of any immigration consequences of his conviction. Under Ford, the Court was not required to do so. Even assuming arguendo that immigration consequences should now be held to constitute direct rather than collateral consequences of conviction, these grounds are apparent from the face of the record, and under Cooks could not constitute grounds on which this Court could grant Defendant's motion, unless Defendant was justified in failing to take the issue up on appeal. CPL § 440.10(2)(c).

2. Montgomery Claims are Superceded by CPL §460.30

Defendant attempts to circumvent Cooks, supra , by arguing that he was justified in failing to take his appeal because neither the Court nor his assigned counsel informed him that he had the right to appeal. People v. Montgomery, 24 NY2d 130, 247 NE2d 130, 299 NYS2d 156 (1969). In Montgomery, the Court of Appeals held that where a defendant's court-appointed counsel failed to advise him of his right to appeal, leading to his failure to take an appeal within the prescribed time period, the proper remedy is to re-sentence the defendant, thereby extending the time in which he can take his appeal.

Montgomery was superceded by CPL § 460.30 a year later. L 1970, ch 996; People v. Corso, 40 NY2d 578, 579, 357 NE2d 357, 359, 388 NYS2d 886, 889 (1976) ("We are of the opinion that applications seeking Montgomery relief are encompassed by CPL 460.30 and should be brought in the manner prescribed in that section."). But if Defendant's failure to appeal in time is found to have been caused by the failure of his assigned counsel to inform him of his right to appeal, that may be deemed improper conduct and grounds for extension of his time to appeal pursuant to CPL § 460.30. Corso, 40 NY2d at 581.

A motion to extend time for taking an appeal pursuant to CPL § 460.30 may not be made more than one year after the time for taking the appeal has expired, and must be made to the appellate court, rather than to the trial court. CPL § 460.30 (1). Defendant was originally sentenced on January 17, 2005. His time to appeal expired thirty days later, on February 16, 2005. CPL § 460.10. Defendant did not serve or file a Notice of Appeal in that time. Defendant was re-sentenced on May 9, 2005. His time to take an appeal was thus extended another thirty days, to June 8, 2005. Defendant again failed to take his appeal within that time. Defendant's time to move to extend his time to appeal therefore expired one year later, on June 8, 2006, and, because any motion to extend time to appeal must be made to the appellate court, this Court lacks the power to extend that date. People v. Thomas, 47 NY2d 37, 43, 389 NE2d 1094, 1096, 416 NYS2d 573, 576 (1979) ("...strict construction is appropriate since the time limits within which appeals must be taken are jurisdictional in nature and courts lack inherent power to modify or extend them"). [*7]

Defendant's motion does not indicate whether Defendant has moved in the Appellate Term to extend time to appeal. At oral argument, defense counsel advised the Court that such a motion was made and granted, and that a Notice of Appeal was filed. There appears to be authority for consolidating any appeal which may be taken from the instant order with an appeal from the judgment, should Defendant deem it appropriate to so move. Cooks, supra .

3. A CPL § 440.10 Motion is a Necessary Precursor to Succeeding on Appeal on Grounds of Inadequate Allocution

Defendant argues that he was further justified in failing to take his appeal because a motion under CPL § 440.10 is a necessary precursor to bringing the appeal. In so arguing, he relies on a line of cases which hold that in order to appeal his conviction on the grounds that his plea allocution was inadequate and that he was not advised of his rights prior to his plea, a defendant must first move to either withdraw his plea of guilty pursuant to CPL § 220.60 or vacate his conviction pursuant to CPL § 440.10, else the issue will not be preserved on appeal. People v. Parris, 4 NY3d 31, 823 NE2d 827, 790 NYS2d 421 (2004); People v. Claudio, 64 NY2d 848, 476 NE2d 644, 487 NYS2d 318 (1985); People v. Riviezzo, 124 AD2d 837, 508 NYS2d 566 (2d Dept. 1986); People v. Mattocks, 100 AD2d 944, 474 NYS2d 849 (2d Dept. 1984).

In Cooks, supra , the Court of Appeals noted a very strange conundrum, where "only because defendant prevailed on that [440.10] motion could the Appellate Division consider him to have failed to perfect his appeal, refuse to consider the merits of this case, and reinstate his judgment of conviction." Cooks, 67 NY2d at 102-3 (citations omitted, emphasis added). This Court's denial of Defendant's motion avoids placing him in the Catch-22 in which Cooks found himself.

II. Defendant's Plea was Knowing, Voluntary, and Intelligent, Following Effective Assistance of Counsel

A. Counsel Must Proffer Meaningful Representation in Order to Effectively Assist Defendant

A guilty plea is knowing and voluntary when "based on reasonably competent advice" from counsel. McMann v. Richardson, 397 U.S. 759, 770-71 (1970) ("That a guilty plea must be intelligently made is not a requirement that all advice offered by the defendant's lawyer withstand retrospective examination in a post-conviction hearing."). Defendant had the opportunity to confer with counsel prior to arraignment. Defendant relies on the allegation that there was a cup of urine in the conference room, the odor from which cut short his pre-arraignment discussion with counsel. Because his pre-arraignment conference with counsel was so short, Defendant argues, he was under the impression that because of his record, he had to take the plea or he would not get out of jail. (Artusa Aff. ¶ 2.)

In order to prevail on the grounds that he was denied effective assistance of counsel, Defendant must show that his attorney failed to provide "reasonably effective assistance" and that Defendant was prejudiced by this failure. Strickland v. Washington, 466 U.S. 668, 687-88 [*8](1984). Prejudice is defined as "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. In New York, however, the criterion is whether counsel has provided the defendant with "meaningful representation." People v. Benevento, 91 NY2d 708, 712, 697 NE2d 584, 587, 674 NYS2d 629, 632 (1998); People v. Satterfield, 66 NY2d 796, 798-9, 488 NE2d 834, 836, 497 NYS2d 903, 905-6 (1985). A reasonable probability that counsel's representation would have affected the result of the proceeding is considered a "significant but not indispensable element in assessing meaningful representation." People v. Caban, 5 NY3d 143, 155-6, 833 NE2d 213, 222, 800 NYS2d 70, 79 (2005), citing People v. Stultz, 2 NY3d 277, 284, 810 NE2d 883, 887, 778 NYS2d 431, 435 (2004) ("Our focus is on the fairness of the proceedings as a whole."). An attorney is "strongly presumed" to have rendered effective assistance to his client, Strickland, 466 U.S. at 690, and the defendant must allege facts demonstrating that counsel lacked even "reasonable competence" in assisting him in order to rebut this presumption. Satterfield, 66 NY2d at 799.

Where defense counsel has arranged a favorable plea bargain for the defendant, it is likely that counsel has provided the defendant with meaningful assistance. People v. Lewis, 116 AD2d 778, 497 NYS2d 297 (3d Dept. 1986). It is well settled that "[w]hen a defendant receives an advantageous plea and the record does not cast doubt on the apparent effectiveness of counsel, defendant is deemed to have been furnished meaningful representation." People v. Boodhoo, 191 AD2d 448, 448, 593 NYS2d 882, 883 (2d Dept. 1993), citing People v. Mayes, 133 AD2d 905, 906, 520 NYS2d 276, 277 (3d Dept. 1987); People v. Lynch, 156 AD2d 884, 550 NYS2d 104 (3d Dept. 1989); People v. Moore, 155 AD2d 696, 548 NYS2d 262 (2d Dept. 1989).

B.Defendant's Allegations do Not Demonstrate Ineffective Assistance of Counsel

Defendant argues that he did not receive effective assistance of counsel, in that he "did not have a full conversation about the case with her," he "told her that I was innocent," and "[s]he told me that I could get out of jail by pleading guilty." (Artusa Aff. ¶ 2.) Defendant also asserts that his counsel "did not tell me that I could get out on bail or release and that I could come back to fight the case," and also failed to tell him that he could appeal, or that his plea would be considered an aggravated felony under immigration law leaving Defendant subject to deportation. Id. Defendant goes on to state in his affidavit various theories of defense, of which he claims to have been unaware at the time he entered his plea, and further states that he "thought that because of my record, I had to take the plea or I would not get out of jail." Id. These allegations do not demonstrate ineffective assistance of counsel.

1. Defendant's Own Thoughts Cannot Form the Basis for a Claim of Ineffective Assistance of Counsel

Defendant lumps together what he asserts he was told by counsel (e.g., that he could get out of jail by pleading guilty) with matters he asserts were merely his own thoughts (e.g., that he had to take the plea or else would not get out of jail), rather than advice given to him by counsel. Defendant's thoughts cannot form the basis of any claim of ineffective assistance of counsel. [*9]That claim must be based upon improper acts or omissions by counsel. Benevento, 91 NY2d at 713-14.

The Court notes that some of Defendant's assertions, including that he did not know he could be released on bail or recognizance, are dubious at best, given Defendant's prior experience with the criminal justice system. Defendant's record includes at least four separate prior cases where he did not plead guilty at arraignment, but was released on bail or recognizance, and entered pleas of guilty at subsequent court appearances many months thereafter.

2. Counsel's Advice to Defendant Regarding the Offered Plea Bargain Did Not Constitute Ineffective Assistance

Effective assistance of counsel requires that the defendant's attorney convey any government plea offer to the defendant, and advise the defendant on the wisdom of accepting the offer. People v. Perez, 11 Misc 3d 1093A (Sup. Ct. Kings Co. 2006), citing People v. Rogers, 8 AD3d 888, 890, 780 NYS2d 393, 396 (3d Dept. 2004). After consulting with counsel, the ultimate decision on whether to plead guilty belongs to the defendant himself. People v. Brundage, 83 AD2d 579, 441 NYS2d 120 (2d Dept. 1981). Here, defense counsel conveyed to Defendant, as she was required to do, the government's offer of a plea to an A misdemeanor in exchange for a sentence of one day of community service and participation in TIP.

Defendant argues that defense counsel's assistance was ineffective insofar as she purportedly recommended that he take the offered plea bargain, despite the fact that he allegedly told her during their pre-arraignment conference that he was actually innocent of the charges. Defendant's assertion as to his counsel's supposed recommendation is not supported by any other evidence and the Court makes no finding as to whether such a recommendation was made.

Defense counsel was not bound to advise against taking the offered plea bargain simply because Defendant told her that he was innocent. Given the intricacies of the law and the burden of the automobile presumption, Defendant was not qualified to determine his innocence, even assuming the facts were as he alleged. It is defense counsel's job to "predict how the facts, as he understands them, would be viewed by a court." McMann v. Richardson, 397 U.S. 759, 769, 90 S. Ct. 1441, 1448, 25 L. Ed. 2d 763, 772-3 (1970). Counsel cannot make these predictions with certitude, but must instead use his or her best judgment. McMann, 397 U.S. at 769-70. We must look to the law, evidence, and circumstances of the case, viewed in the totality, to determine whether counsel's best judgment constituted the meaningful representation which satisfies effective assistance of counsel. Boodhoo, 191 AD2d at 448. In doing so, we must "avoid both confusing true ineffectiveness of counsel with mere losing tactics and according undue significance to mere retrospective analysis." Satterfield, 66 NY2d at 798 (citations omitted).

Nor do Defendant's allegations that his counsel did not spend sufficient time conferring with him prior to arraignment warrant relief. As shown above, it is the quality of counsel's representation, rather than the quantity of time spent by counsel conferring with the defendant, that determines whether the representation was effective. See generally People v. Tomaselli, 7 NY2d 350, 165 NE2d 551, 197 NYS2d 697 (1960). Here, the facts demonstrate that Defendant received effective representation.

Defendant has a criminal record which goes back to 1984. This is not his first [*10]drug-related charge; he was previously convicted in 2003 on a plea of guilty of Attempted Criminal Possession of a Controlled Substance in the Seventh Degree (PL § 110/220.03). It would not have been unreasonable for defense counsel to advise that he take a plea bargain which would involve no jail time whatsoever, given his prior record and the evidence against him. It is undisputed that the police had recovered crack cocaine from the floor of Defendant's car while Defendant was in the driver's seat. Defendant was also charged with violating VTL § 1201(A)(1)(a) for double parking, which, if proven, would provide the predicate for the police to have observed the drugs allegedly in plain view by Defendant's feet inside the vehicle he was admittedly driving. Nor would it have been unreasonable for defense counsel to believe that the evidence in the case would have led to a reasonable likelihood of conviction if Defendant had chosen to proceed to trial. Defense counsel is not expected to be a perfect predictor of the results of litigation, but she is required to use her training and experience to analyze the possibilities and advise Defendant based on her analysis, which is precisely what she did.

3. Counsel was not Required to Advise Defendant of Immigration Consequences of His Plea

Failure of counsel to warn Defendant of possible or even certain immigration consequences of his plea did not constitute ineffective assistance of counsel. Ford, 86 NY2d at 404; People v. Baldares-Lima, 2006 NY Slip Op. 3911, 813 NYS2d 909 (2d Dept. 2006); People v. Sandher, 12 AD2d 464, 785 NYS2d 87 (2d Dept. 2003); People v. Leybinsky, 299 AD2d 494, 749 NYS2d 884 (2d Dept. 2002); People v. Mesquite, 234 AD2d 395, 651 NYS2d 546 (2d Dept. 1996); Boodhoo, supra . Poor advice or misstatements by counsel regarding deportation consequences may constitute ineffective assistance. Couto, supra ; People v. McDonald, 296 AD2d 13, 745 NYS2d 276 (3d Dept. 2002).

Defendant does not argue that counsel made any misstatements regarding deportation consequences of his pleading guilty at arraignment. Rather, he alleges that she never mentioned the possibility at all. (Artusa Aff. ¶ 2.) As such, assuming Defendant's allegations to be true for purposes of argument, defense counsel's alleged omission in not raising the subject of deportation consequences fails, under current law, to rise to the level of ineffective assistance of counsel.[FN6] Ford, 86 NY2d at 404. Though some doubt on this issue has been raised in dicta by the Second Circuit (Couto, 311 F.3d at 187-8, citing Michel v. U.S., 507 F.2d 461, 465 (2nd Cir. 1974)) and the United States Supreme Court (St. Cyr, 533 U.S. at 323 n50), this Court is nonetheless bound to follow the holdings in Ford and Leybinsky . While this may change in the [*11]future, should some proposals of the various Bar Associations be adopted by legislation, administrative rule, or upon appellate guidance, as a lower court we cannot hold defense counsel to a standard which did not exist at the time of her representation of the defendant, and does not yet exist today.

III. An Evidentiary Hearing Is Not Required on This Motion

Both parties waived an evidentiary hearing when offered the opportunity to do so by the Court at oral argument. Because the People do not dispute the allegations upon which Defendant's motion is based, no evidentiary hearing is required for the Court to rule on the instant motion. The Court has the power to rule on a motion to dismiss without holding an evidentiary hearing, "unless the papers submitted by the prosecutor show that there is a factual dispute which must be resolved at a hearing." People v. Gruden, 42 NY2d 214, 217, 366 NE2d 794, 797, 397 NYS2d 704, 706 (1977). A hearing is only required on such a motion where the affidavits show a factual dispute on a material point. People v. Santos, 68 NY2d 859, 861, 501 NE2d 19, 21, 508 NYS2d 411, 413 (1986); Gruden, supra . at 215.

To the extent not specifically discussed above, Defendant's contentions concerning deficiencies in his arraignment and ineffective assistance of counsel are found to be without merit and insufficient to require an evidentiary hearing.

IV. Conclusion

This Court is not unsympathetic to the plight of Frank Artusa and the many non-citizens who have been subjected to the drastic consequence of removal after decades of residence in the United States. The idea of Defendant being deported for two drug possession misdemeanors, neither of which was deemed sufficiently egregious as to warrant any jail time whatsoever, appears to this Court to be unjust, particularly given Artusa's 40 year residence in this country, and the likelihood that he was unaware at the time he entered his plea of guilty that it would lead to deportation. "In recent years, the immigration consequences of criminal convictions have verged on the monstrously cruel in their harshness compared to many of the crimes on which they are imposed." Resendiz, 25 Cal. 4th at 257 (Mosk, J., concurring and dissenting). Nevertheless, this Court is bound to follow established statutory law and appellate precedent, which requires denial of Defendant's motion.

Should Defendant's conviction be negated by an appellate court on the merits, either because of insufficient allocution or on grounds of ineffective assistance of counsel, Defendant would apparently no longer be subject to removal. Under the circumstances, Defendant's relief, if any, must come from an appellate court, the Department of Homeland Security, or, ultimately, from the Federal Court's review of his removal proceedings.

The foregoing is the decision and order of the Court.

Dated:August 16, 2006

Brooklyn, New York______________________________

MICHAEL GERSTEIN

J.C.C. [*12] Footnotes

Footnote 1:Pursuant to 8 U.S.C. § 1101(a) 43, illicit trafficking in a controlled substance as defined by 21 U.S.C. § 802, including any felony punishable under the Federal Controlled Substances Act, 21 U.S.C. § 801, et. seq., is deemed an "aggravated felony". A "drug trafficking crime" is one punishable under the Controlled Substances Act, 21 U.S.C. § 810 et. seq., and which would be a felony under either state or federal law. 18 U.S.C. § 924(c)(2). Thus, as possession of heroin would constitute a felony under federal law, DHS considers Defendant's two state law misdemeanor convictions for violating PL § 220.03 an "aggravated felony" sufficient to warrant deportation of a non-citizen, notwithstanding that the cases were neither prosecuted in Federal Court nor charged as felonies in state court.

Footnote 2:Both the plea and sentence were before Judges who are no longer assigned to Criminal Court, Kings County.

Footnote 3:In view of the insufficiency of Defendant's allocution, it is unnecessary to discuss any of the other alleged deficiencies of his arraignment.

Footnote 4:The fact patterns of some cases found to have "verged on the monstrously cruel" are set forth in Resendiz, 25 Cal. 4th at 257 (Mosk, J., concurring and dissenting).

Footnote 5:For example, S. 2611 provides that a third conviction for drunk driving would constitute an "aggravated felony" and be grounds for deportation of a non-citizen.

Footnote 6:Notably, Defendant does not allege that he advised his attorney that he was not a United States citizen. Under the circumstances, if Defendant was not advised of the immigration consequences of his plea, it may have been because it did not occur to defense counsel that Defendant was at risk of deportation. Defendant alleges that he was unaware of any possible immigration consequences, so there may have been no reason for him to think to inform counsel of his lack of United States citizenship. Furthermore, given that Defendant has lived in the United States for the past 40 years, since he came to this country as a young child, it is unlikely that there was anything about his appearance or demeanor to indicate to counsel that he might not be a citizen.