People v Hidalgo

[*1] People v Hidalgo 2006 NY Slip Op 51676(U) [13 Misc 3d 1203(A)] Decided on September 5, 2006 Supreme Court, New York County Hayes, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 5, 2006
Supreme Court, New York County

The People of the State of New York

against

Olmado Hidalgo, Defendant.



12975/90



Robert Morgenthau, District Attorney, New York County (Joel J. Seidemann of counsel), for the People.

Irving Cohen for defendant Hidalgo.

Roger S. Hayes, J.

INTRODUCTION

On November 2, 1990, Olmado Hidalgo was indicted for violating Penal Law § 265.02, based on a charge he possessed a loaded .357 magnum pistol inside 600 West 183rd Street in New York City (Indictment No. 12975/90). On November 27, 1991, defendant and David Lemus were indicted for the murder of Marcus Peterson and the wounding of Jeffrey Craig, bouncers at the Palladium nightclub (Indictment Nos. 674/91 and 12833/91). These charges were unrelated to the weapon charge against defendant. Following a jury trial, defendant and Lemus were convicted of murder in the second degree and attempted murder in the second degree. On January 6, 1993, Justice Jay Gol [FN1] 1 sentenced each defendant to an indeterminate prison term of from twenty-five years to life for the murder count and lesser concurrent terms for the attempted murder count. On the same day, defendant pleaded guilty to the weapon charge. He was thereafter sentenced, in accordance with the promises made by the Court at the time of the plea, to a prison term of one year, concurrent with his sentence on the murder and related charges.

PROCEDURAL HISTORY

[*2]THE FIRST CPL 440 MOTION

In 1996, both defendant and Lemus moved to vacate the judgments of conviction of the murder and attempted murder charges pursuant to CPL 440.10(1)(g). The People opposed the motions, but consented to a hearing, which was held before Justice Gold from April through June 1996. On October 29, 1996, Justice Gold denied the motions.

DEFENDANTS' DIRECT APPEAL

On direct appeal of the murder and attempted murder charges, the Appellate Division affirmed the judgments of conviction (240 AD2d 170 [1st Dept. 1997]). On October 14, 1997, the Court of Appeals denied leave to further appeal (90 NY2d 1012).

THE SECOND CPL 440 MOTION

On July 16, 2004, defendant and Lemus jointly filed a second motion to vacate the judgments of conviction based on newly discovered evidence and alleged Brady violations. On October 29, 2004, the motion was assigned to this Court. On February 18, 2005, this Court granted a hearing, pursuant to CPL 440.30, to resolve both the Brady and newly discovered evidence claims.

On July 22, 2005, the People consented to vacate the judgment of conviction on the murder and attempted murder counts against defendant on the ground of newly discovered evidence. On August 19, 2005, the People consented to dismissing the murder and attempted murder charges against him.

DEFENDANT'S REMOVAL PROCEEDINGS

On October 8, 1998, Immigration Judge Mitchell Levinsky ordered defendant deported and removed from the United States.

On September 7, 2005, defendant filed a motion to reopen the removal proceeding on the ground the People had dismissed his murder and attempted murder convictions. The Department of Homeland Security opposed the motion alleging, among other things, that even though defendant's conviction was vacated, he was still deportable on the ground he was an alien present in this country who had not been legally admitted or paroled to the United States.

On September 12, 2005, Immigration Judge Joe D. Miller denied defendant's motion to reopen the removal proceedings. Judge Miller concluded that while the criminal conviction had been vacated and the underlying charges dismissed, defendant remained deportable because he entered the United States without inspection. Judge Miller relied on Judge Levinsky's 1998 determination that "the respondent was not eligible for any form of relief, since he had been convicted of murder in the second degree, and as an alien who was not legally admitted to the United States." In his September 9, 2005 Order, Judge Miller held

I am satisfied that there is no new material evidence sought to be offered in this case that would compel the court to reopen these proceedings. While the respondent's criminal conviction has been set aside, the record clearly reflects that he was also ordered deported for entering the country without inspection. That part of the order is still valid, and the respondent still remains deportable at this time. To reopen these proceedings simply to make a paper correction would bestow no benefit on either party. The respondent would remain deportable, exactly as he is without reopening the proceedings.

Accordingly, Judge Miller ordered defendant removed from the United States and deported to [*3]the Dominican Republic in accordance with Judge Levinsky's 1998 Order. Defendant was subsequently deported to the Dominican Republic.

THE INSTANT CPL 440.10 MOTION

On November 8, 2005, defendant filed this motion to vacate the judgment of conviction of Criminal Possession of a Weapon in the Third Degree. He contends that the plea was entered upon an agreement the sentence imposed would run concurrently with the sentences on the murder and attempted murder convictions. He claims that since the underlying murder and attempted murder convictions have been vacated and dismissed, his weapon possession conviction must also be vacated. He relies on People v. Rogers, 48 NY2d 167 (1979), where the Court of Appeals vacated a defendant's burglary conviction after the defendant's robbery conviction was reversed. In Rogers, the Court of Appeals held that

[s]ince defendant's plea of guilty to burglary in satisfaction of another indictment was entered upon an agreement that the sentence imposed would run concurrently with the sentence imposed on the robbery conviction, the plea should be vacated (id. at 174-175).

In their response dated December 6, 2005, the People acknowledge that "when a guilty plea is induced by the court's explicit promise that the defendant will receive a lesser sentence to run concurrently with a sentence in another case, and that conviction is overturned, the defendant may withdraw his plea and face the indictment, since the promise cannot be kept" (People v. Pichardo, 1 NY3d 126, 129 [2003]). Nonetheless, the People maintain "when it is unclear that such a promise [is] made, vacatur of the plea is unwarranted" (id. at 129; see also People v. Lowrance, 41 NY2d 303, 304 [1977]). Accordingly in distinguishing this case from Pichardo where the court made an unambiguous promise to run the sentences concurrent with a New York County case the People argue vacating defendant's weapon plea is unwarranted because it is unclear whether his plea was induced by the promise of a sentence equivalent to "timed served" or the promise of a concurrent sentence. Defendant replied that Pichardo is applicable here because defendant was induced to accept the plea bargain as he had already been convicted of murder and attempted murder and was explicitly promised a concurrent sentence by Justice Gold.

On December 19, 2005, the People filed a sur-reply, in which, for the first time, they contended that the Court is barred from vacating the conviction because defendant is not subject to the jurisdiction of the Court. To support this claim, the People rely on People v. Del Rio, 14 NY2d 165 (1964). In Del Rio, after the defendant was convicted of murder in the second degree in consideration of the commutation of his sentence and his release from prison he voluntarily agreed to go to Cuba and never again enter the United States (14 NY2d 165 [1964]). The Court held that in doing so, Del Rio abandoned his appeal and deliberately waived his right to have his appeal heard and decided (id.). Although the Court of Appeals in Del Rio relied principally on its conclusion the defendant abandoned and waived his appeal, it also said "[a]ll the courts are in agreement that in the defendant's absence from the jurisdiction the appeal will not be heard " (id. at 169). In People v. Frias, 25 AD3d 384 (1st Dept. 2006), the Court did not discuss the waiver analysis but simply relied on the fact the defendant was not available to obey the mandate of the Court in the event of an affirmance. The People acknowledge that defendant was involuntarily deported but claim the consequences for him are the same his motion should be denied because he is not subject to the jurisdiction of the Court if the requested relief were granted. The People further contend that even though defendant was involuntarily [*4]deported, it was his voluntary decision to enter the United States illegally, which caused his deportation. Thus, they claim that if the Court were to vacate his weapon conviction and order a new trial he could not be retried because he has no legal basis to return to the United States.

In response, defendant argues that because he did not voluntarily agree to absent himself from the jurisdiction, as did the appellant in Del Rio, he has not waived his right to have this motion decided. Nonetheless, the First Department has held regardless of whether a defendant is "voluntarily" or "involuntarily" deported, if he is unavailable to obey the mandate of the court as a consequence of his own voluntary misconduct, his appeal will be dismissed (People v. Reyes, 292 AD2d 271 [1st Dept. 2002]).

Defendant further argues that if his conviction were vacated, the fact he has been deported because of his alleged "entry without inspection," would not permanently bar him from returning to the United States and that he would seek to return lawfully and would be willing to have a trial on the weapon charge. In support of this claim, he submits an affirmation from Neil Weinrib, Esq., an attorney specializing in immigration and nationality law for twenty-five years. Mr. Weinrib sets forth the provisions of the immigration law which he claims defendant may utilize to effectuate readmission.

CONCLUSIONS OF LAW

It is the law of this State that a defendant may not have his appeal heard or decided if he is outside the Court's jurisdiction (People v. Bacon, 46 NY2d 1073 [1979]; People v. Del Rio, 14 NY2d 165 [1964]; People v. Reyes, 292 AD2d 271 [1st Dept. 2002]). Since defendant has been deported to the Dominican Republic, "he is not presently available to obey the mandate of the court" (People v. Llama, 19 AD3d 170 [1st Dept. 2005]; People v. Barazza, 12 AD3d 242 [1st Dept. 2004]). Although this motion is not an appeal, there is no reason advanced by the defendant why the same legal principles should not apply to this CPL § 440.10 motion. The principle is the same if the defendant is not subject to the mandate of the Court, the Court will not consider his application for relief.

Defendant argues that he did not voluntarily accept his deportation and that this distinguishes his case from the cases relied on by the People. However, regardless of whether defendant was "voluntarily" or "involuntarily" deported, he is currently unavailable. Whatever might happen if his motion is granted, he cannot evade the fact he is not subject to the Court's jurisdiction and may never be readmitted to the United States. In part, his unavailability is a consequence of his voluntary misconduct, which consisted of entering the United States without inspection (see People v. Reyes, 292 AD2d 271 [1st Dept. 2002]). Thus, even if the Court were to vacate his conviction for the weapon charge and order a trial, by voluntarily violating the Immigration laws and illegally entering the United States, defendant has exiled himself from this jurisdiction and is currently unavailable to obey the mandate of the Court.

The Court is aware that some commentators and courts in other states have taken the position a person involuntarily deported should be allowed to challenge a conviction even though the person is no longer in the jurisdiction (see Richman, Outside Counsel, Deported Defendants: Challenging Convictions From Abroad, NYLJ, June 14, 2006, at 4, col 2; see also State v. Ortiz, 774 P.2d 1229 [Wash. 1989]). However, this position is contrary to current New York law. Where there is an unbroken line of appellate authority contrary to the defense position, it is not appropriate for a trial court to make new law or develop a novel interpretation of existing law. That privilege rests with either the legislature or the appellate courts. Although there appears to [*5]be some "catch 22" like aspects to this line of reasoning I cannot appeal my conviction because I have been deported and I cannot re-enter the United States because of my conviction this is clearly the law. Further, this defendant was deported not only for his conviction but also for his own misconduct in entering the United States without inspection.

For the above stated reasons, defendant's motion for an order vacating the judgment of conviction is denied. If defendant does become subject to the mandate of the Court, at that time

he can renew this motion. This constitutes the decision and order of the Court.

New York, New York

September 5, 2006 __________________________________

Roger S. Hayes, J.S.C. Footnotes

Footnote 1: Justice Gold is now retired.