People v Acosta

[*1] People v Acosta 2006 NY Slip Op 51832(U) [13 Misc 3d 1215(A)] Decided on September 22, 2006 Supreme Court, New York County Ward, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through September 29, 2006; it will not be published in the printed Official Reports.

Decided on September 22, 2006
Supreme Court, New York County

The People of the State of New York

against

Roberto Acosta, Defendant.



5158/88



The defendant, Roberto Acosta, submitted the motion pro se and there

was no response from the People.

Laura A. Ward, J.

The defendant, initially charged with criminal sale of a controlled substance in the third degree, in violation of Penal Law ("PL") § 220.39, pleaded guilty to attempted criminal sale of a controlled substance in the fifth degree, in violation of PL §§ 110/220.31. The defendant moves pro se pursuant to Criminal Procedure Law ("CPL") § 440.10 to vacate the judgment of conviction on the sole ground that the Board of Immigration Appeals of the United States Department of Justice ("Board") has ruled that failure to advise a defendant that pleading guilty has immigration consequences is a "directly fatal and prejudicial consequences." (Defendant's Motion ["Motion"] at p.2)[FN1]

The defendant asserts that

In Matter of Adamiak, Int. Dec. # 3525, rendered by February 8, 2006, [sic] giving a second chance to non-citizens who had pleaded guilty prior to such date and when accepting criminal responsibility the presiding Justice failed to warn of future immigration consequences, the pleas are now deemed invalid.

The Adamiak's determination by the federal agency now recognized that pleas without warnings of immigration consequences are not valid and should not be defined as collateral consequences of the guilty plea - but, directly fatal and prejudicial consequences.

(Motion at p. 2)

The defendant's reliance on Matter of Adamiak, 23 I & N Dec. 878 (BIA 2006) is misplaced. In Matter of Adamiak, the defendant, a lawful permanent resident, pleaded guilty to a drug trafficking offense, in violation of Ohio law. Pursuant to section 2943.031 of the Ohio [*2]Revised Code, the court was required to advise the defendant of the immigration consequences of his guilty plea. The Ohio court failed to advise the defendant of the effect the plea would have on his immigration status. The defendant moved before the Ohio court to vacate his guilty plea. The Ohio court granted the motion on the ground that the defendant was not advised, pursuant Ohio law, of the immigration consequences of the plea.

Proceedings were commenced to remove the defendant from the United States. The removal proceedings were predicated upon the Ohio conviction. The defendant moved before an immigration judge to cancel his removal from the United States. The motion was denied. The defendant appealed the decision.

The Board found that since the Ohio court held the plea invalid, the plea was defective. (Adamiak, at p. 879) The Board stated that

[t]he respondent's . . . conviction was vacated by the trial court pursuant to section 2943.031 of the Ohio Revised Code because of a defect in the underlying criminal proceedings, i.e., the failure of the court to advise him of the possible immigration consequences of his guilty plea. We conclude the court's vacation of that conviction should be recognized for immigration purposes, and we no longer consider the conviction to be valid.

(Adamiak, at p. 881)

The Board did not address whether a court must warn a defendant who is pleading guilty of the immigration consequences of the guilty plea. The Board's ruling was directed solely at the issue of whether a guilty plea, subsequently vacated, could be a basis for deportation. The Board honored the decision of the Ohio court that rendered the plea defective. Giving full faith and credit to the Ohio court's decision, the Board held that the Ohio conviction could not be used as a basis of removal.

Unlike Ohio, it has long been the law in New York State that the failure of the court to advise a defendant of the possible immigration consequences of his/her plea "shall not be deemed to affect the voluntariness of the plea of guilty or the validity of a conviction, nor shall it afford a defendant any rights in a subsequent proceeding relating to such defendant's deportation." (CPL § 220.50(7); see: People v. Ford, 86 NY2d 397 [1995])Therefore, under New York law, the failure to advise a defendant of the immigration consequences of a guilty plea does not render that plea defective and require that the plea be vacated. Thus, the Board s decision does not effect the validity of the defendant's plea of guilty.

The motion to vacate the judgment of conviction is denied.

The foregoing is the decision and order of the court.

Dated: New York, New York

September 22 , 2006

[*3]

Laura A. Ward

Acting Justice Supreme Footnotes

Footnote 1:The defendant, in his affidavit, states that "[a]nother warning never communicated tothis defendant had been the rights [sic] to contact consular officials of the DominicanRepublic during criminal prosecution to assist me in the legal defense as mandated byArticle 36 of the Vienna Convention on Consular Relations. . . ."The defendant doesnot allege, nor could he allege, that the failure to advise him of his right to contactconsular officials affected the voluntariness of his guilty plea. Therefore, the court neednot address this issue.