People v Salazar

[*1] People v Salazar 2006 NY Slip Op 51647(U) [13 Misc 3d 1202(A)] Decided on August 28, 2006 Criminal Court, New York County Laporte, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 28, 2006
Criminal Court, New York County

The People of the State of New York

against

Edwin Salazar, Defendant.



2005NY022151



Ismael Gonzalez, New York City, for Defendant.

Robert Morgenthau, New York County District Attorney (Moira McDonough, of counsel).

Evelyn J. Laporte, J.

Defendant was convicted of Criminal Possession of a Controlled Substance in the 7th Degree (P.L. § 220.03). He moves to vacate his plea of guilty and judgment of conviction pursuant to C.P.L. § 440.10(1)(h) claiming that he received ineffective assistance of counsel. On March 13th , the People filed an affirmation opposing Defendant's motion to vacate judgment. Although a hearing was granted on April 7th pursuant to Criminal Procedure Law § 440.30(5), a formal hearing did not take place because Defendant is in the custody of the United States Immigration and Customs Enforcement (USICE) in the state of Louisiana. Defendant submitted his testimony to the court via affidavit. Upon consideration of the relevant law and facts of this case the defendant's motion is denied.

Facts

On March 27th, 2005, police officers arrested Defendant and his brother in front of 1760 Madison Avenue for burning a marijuana cigarette in open view. According to the criminal court complaint, two bags of marijuana were recovered from the ground where they fell when Defendant stood up and two additional bags were found on his person. Defendant and his brother were placed in a prisoner van and taken to the precinct. Upon arrival to the police precinct, the arresting officer recovered a "deck" of heroin from the prisoner van. Defendant was charged with possession of the heroin. The Defendant was arraigned on March 28th, 2005, [*2]where he pleaded guilty to a violation of Penal Law § 220.03 and was sentenced to time served.

By notice of motion dated January 27th, 2006, defendant moves to vacate his guilty plea and judgment of conviction pursuant to Criminal Procedure Law § 440.10 claiming that he received ineffective assistance of counsel. The basis for Defendant's claim is that his attorney (1) coerced him into pleading guilty, (2) was ineffective in that she did not request an adjournment to further investigate his story before entering his plea, (3) failed to provide him with a Spanish interpreter and (4) incorrectly advised him that his guilty plea would not affect his immigration status. Defendant states that had he been properly advised about the immigration consequences of his plea, he would not have pleaded guilty.

Defendant is currently involved in deportation proceedings and in the custody of the USICE in the state of Louisiana, making it difficult for a formal hearing to be held. In lieu of his testimony and personal appearance, an affidavit signed by Defendant was submitted to the Court on July 6th. In his affidavit, Defendant states that on the date of his arrest he was sitting in front of 1760 Madison Avenue when he and his brother were approached by officers who arrested him for "burning a cigarette" and for marijuana they found near the Defendant. Defendant's Affidavit, paragraphs 1 and 2. Prior to being placed in the police van, Defendant alleges that he requested that the officers first search the van, but his requests were denied. Defendant's Affidavit, paragraphs 4,5 and 7. Officers later found heroin in the van which they attributed to Defendant after debating amongst themselves who they would hold responsible. Defendant's Affidavit, paragraphs 8, 9, 10 and 11. Defendant was arraigned the following day and he met a lawyer from the Legal Aid Society who conveyed the People's recommendation that he be sentenced to time already served if he were to plead guilty to the A misdemeanor of Criminal Possession of a Controlled Substance in the Seventh Degree (P.L. § 220.03). Defendant's Affidavit, paragraph 12. Defendant claims that the attorney advised him that this plea would not affect his immigration status. Id. Claiming that his attorney "did nothing to protect [his] rights", "acted hastily" by entering his guilty plea without first adjourning the matter to investigate it further, and "coerced [him] into a guilty plea" by telling him that he would get time served and leave jail that day if he pled guilty, Defendant moves to vacate his conviction pursuant to C.P.L. § 440.10(1)(h). Defendant's Affidavit, paragraphs 17, 18 and 21. Defendant has provided no other witness testimony or statements in support of his application.

Ineffective Assistance of Counsel

Pursuant to C.P.L. § 440.10(1)(h), a judgment of conviction may be vacated when it was "obtained in violation of a right of the defendant under the constitution of this state or of the United States." Criminal Procedure Law § 440.10(h). The right to the effective assistance of counsel is guaranteed to all defendants through the Federal and State Constitutions. The United States Supreme Court, in Strickland v. Washington, has established a two part test for evaluating claims of ineffective assistance of counsel which requires that Defendant show (1) counsel's performance was deficient and (2) that the substandard representation prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Although Strickland dealt with a claim of ineffective assistance stemming from a capital sentencing proceeding, later Supreme Court decisions have held that the same two part test applies to such claims arising out of the plea process. Hill v. Lockhart, 474 U.S. 52, 57 (1985).

Under the first prong of the two part test established in Strickland, a defendant must show [*3]that counsel's representation fell below an objective standard of reasonableness. People v. McDonald, 1 NY3d 109, 113 (2003). Although defense counsel does not have an affirmative duty to warn defendant of the possible deportation consequences of entering a guilty plea (People v. Ford, 86 NY2d 397 (1995)), incorrect advice as to immigration consequences of a plea falls below an objective standard of reasonableness. McDonald, 1 NY3d at 115; U.S. v. Cuoto, 311 F.2d 179 at 188 (2nd Cir. 2002). To meet the second requirement of Strickland, Defendant must prove prejudice to the defendant by showing "that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." McDonald at 115 citing Hill v. Lockhart, 474 U.S. 52 at 58 (1985).

The second requirement, in addition to protecting the public's interest in the finality of guilty pleas, is an acknowledgment of the complexities and nuances in legal representation that make it impossible to formulate a precise definition of prejudicial error. Hill, at 57-58. As the Court stated in Strickland v. Washington :

Attorney errors come in an infinite variety and are as likely to be utterly harmless in a particular case as they are to be prejudicial. They cannot be classified according to likelihood of causing prejudice. Nor can they be defined with sufficient precision to inform defense attorneys correctly just what conduct to avoid. Representation is an art, and an act or omission that is unprofessional in one case may be sound or even brilliant in another. Even if a defendant shows that particular errors of counsel were unreasonable, therefore, the defendant must show that they actually had an adverse effect on the defense. Strickland, 466 U.S. at 693.

Therefore, in order to prevail, Defendant must show that but for his trial counsel's error he would not have pleaded guilty and would have insisted on going to trial.

The prejudice inquiry will, in some cases, "closely resemble the inquiry engaged in by courts reviewing ineffective assistance challenges to convictions obtained through a trial" requiring the court to predict the outcome of any potential litigation had defendant not pleaded guilty and insisted on going to trial. Hill at 59. This predictive analysis is appropriate in situations "(1) where the alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence and (2) where the alleged error of counsel is a failure to advise the defendant of a potential affirmative defense to the crime charged." McDonald at 114 quoting Hill at 59 (internal quotation marks omitted). In making this assessment the court must determine "whether the evidence likely would have changed the outcome of a trial." Hill at 59.

In the instant matter, Defendant alleges that his trial counsel's failure to seek an adjournment to investigate his story prejudiced his defense but he does not indicate what evidence, if any, this investigation would have uncovered. His assertion that an investigation would have changed the outcome of the proceedings is based solely on speculation and conjecture. For this reason, resolution of the motion before the Court does not necessitate a predictive analysis.

An affirmation or statement from Defendant's trial counsel is noticeably absent from the record. However, this Court does not need to reach the issue of whether Defendant's statement requires corroboration in order to establish the first element of the two part test since prejudice to the Defendant is clearly not shown. See Strickland, 466 U.S. at 697. [*4]

Defendant's Motion to Vacate Judgment

Defendant, in his affirmation, raises three points which he believes establish that his trial counsel did not provide the adequate level of representation [FN1].

Defendant claims that his trial counsel coerced his plea but the coercion asserted is solely that his attorney "kept on telling" him that he would be sentenced to time served if he pleaded guilty. The record is devoid of any facts that would indicate any intentional force or pressure by defense counsel to dispose of the case. Assuming that Defendant's recitation of the facts is true, the Court cannot accept the argument that a persistent communication of the People's recommendation constitutes coercion. Defendant could have disregarded the proposed disposition and continued to trial but instead he freely and voluntarily chose not to do so in order to avail himself of a beneficial disposition. In fact, when asked about the voluntariness of his plea, he stated to the Court that his decision was made voluntarily and of his own free will [FN2]. He did not indicate that he was being coerced at the time he entered his guilty plea and he has failed to now convince the court that his plea was not voluntary. [*5]

Having found that Defendant's plea was voluntarily given, the Court rejects the argument that counsel was deficient by failing to adjourn the matter for investigation before entering his guilty plea. Counsel was bound by her client's decision to plead guilty. It is not uncommon for a defendant to decide to enter a guilty plea at the time of his arraignment. The People's offer or recommendation is often most lenient at this stage making it advantageous for a defendant who is in fact guilty to take responsibility for his actions. So long as the defendant admits his guilt and does so intelligently and free of any undue pressure or influence his plea will be acceptable to the court. The law does not require that counsel fully investigate all of the defendant's allegations before acting on her client's decision to plead guilty at arraignments, something which would be impossible at that stage of the proceedings, and this Court will not impose that additional obligation.

Finally, Defendant seeks to convince the Court that had he been properly advised of the immigration consequences of his plea he would not have pleaded guilty and would have gone forward to trial. A careful review of the court file, Defendant's affidavit and motion papers convince this court otherwise. In his affidavit Defendant stresses that his attorney communicated to him that his plea would result in immediate release from custody, which seemed to be his primary concern. Defendant has a criminal history dating back to 1990 that includes five convictions for violations and one misdemeanor conviction, not including the instant matter. Several cases were resolved at his arraignment but others remained pending for up to a year. During the pendency of these cases, warrants were issued for his arrest on more than one occasion. As a result of this, the Criminal Justice Agency deemed him a high risk for failing to appear and did not recommend him for release on his own recognizance. Given his familiarity with the criminal justice system, Defendant was understandably concerned with being released. His motion papers and his affidavit provide no facts that would convince this court that had he known of the immigration consequences at the time of his plea, those potential consequences would have overridden his desire for immediate release.

Based upon a review of the record, the court finds that Defendant's plea was not coerced and he has not demonstrated that he was prejudiced by counsel's alleged ineffective assistance. Accordingly, Defendant's motion to vacate judgment is denied.

This constitutes the decision and order of the court.

Dated: August 28, 2006__________________________

New York County, New YorkEvelyn J. Laporte

Judge of the Criminal Court Footnotes

Footnote 1:In his motion papers, in addition to the three arguments discussed above, Defendant mentions the absence of a Spanish interpreter, implying that he did not fully understand the proceedings. Because his affidavit does not provide any factual allegations in support of this statement, he does not make the necessary showing for the court to consider the argument. However, if the court were to consider it, the argument would be rejected. The record makes clear that Defendant had enough of a command of the English language not to require the assistance of a Spanish interpreter. Defense counsel's application to the court included a request that no action be taken on the suspension of his driver's license. Counsel's request included factual details not available in the court file that could only have been obtained through communication with Defendant. Furthermore, during the plea allocution, Defendant responded appropriately to all questions posed by the court. In fact, at one point Defendant corrected the court by stating "not on me" when asked if he was found with heroin on his person.

Footnote 2:The relevant part of the minutes of Defendant's plea allocution are excerpted below. THE COURT: Sir, your attorney tells me that you would like to plead guilty to violating Penal Law 220.03, Criminal Possession of a Controlled Substance in the Seventh Degree. It's an "A" misdemeanor. Is that what you wish to do? MR. SALAZAR: Yes. THE COURT: Are you pleading guilty voluntarily and on your own free will? MR. SALAZAR: Yes. THE COURT: Are you pleading guilty because you are guilty of these crimes? MR. SALAZAR: Yes.