People v Aybar

[*1] People v Aybar 2006 NY Slip Op 51932(U) [13 Misc 3d 1221(A)] Decided on October 12, 2006 Supreme Court, New York County Ward, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 12, 2006
Supreme Court, New York County

THE PEOPLE OF THE STATE OF NEW YORK

against

Danilo Aybar, Defendant.



7052/95

Laura A. Ward, J.

On August 16, 1995, the defendant pleaded guilty to attempted criminal possession of a controlled substance in the third degree, in violation of PL §§ 110/220.16(1). The defendant moves pro se, pursuant to Criminal Procedure Law ("CPL") § 440.10, to vacate the judgment of conviction on the grounds that he was not advised of the immigration consequences of his guilty plea, he did not receive " warnings' concerning protections under Article 36 of the Vienna Treaty," he did not speak English at the time he pleaded guilty and the "first offender's federal statutes were to be examined because [he] was not a citizen of the United States. . . during and after the prosecution."

The defendant's argument that his plea should be vacated because he was not advised of the immigration consequences of his guilty plea is without merit. The defendant cites to the Board of Immigration Appeals of the United States Department of Justice ("Board") decision in Matter of Adamiak, 23 I & N Dec. 878 (BIA 2006). The defendant argues that the decision in Matter of Adamiak, supra, requires that his motion to vacate his plea of guilty should be granted. The defendant's reliance on Matter of Adamiak, supra, is misplaced.

In Matter of Adamiak, supra, 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 by a state court, could be a basis for deportation. The Board held that when a state court vacates a conviction because it is defective, the conviction may not be used as a basis of removal. The Board gave full faith and credit to the state court's decision to vacate a guilty plea due to the court's failure to comply with a state statute, which required a court to inform a defendant of the immigration consequences of a guilty plea, and held that the conviction could not be used as a basis of removal.

Unlike the state statute referenced in Matter of Adamiak, supra, 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]) Thus, the Board s decision does not effect the validity of the defendant's plea of guilty. [*2]

The defendant's assertion that his plea must be vacated because he did not receive " warnings' concerning protections under Article 36 of the Vienna Treaty" is similarly without merit. Article 36 of the Vienna Convention on Consular Relations ("Vienna Convention"), Apr. 24, 1963, [1970] 21 U.S.T. 77, 100-101, T.I.A.S. No. 6820, provides that a non-citizen defendant may contact the consul of the country of which the defendant is a citizen for the purpose of allowing free communication between the defendant and the consul. However, the Vienna Convention does not create any fundamental rights for a non-citizen (United States v. De La Pava, 268 F.3d 157, 165 [2d Cir. 2001]). In United States v. Hurtado,F.3d, 2006 WL 2457184 (4th Cir., 2006), the defendant argued that his guilty plea should be vacated as a result of the failure to advise him of his rights under Article 36 of the Vienna Conference. The court, citing Sanchez-Llamas v. Oregon, U.S. , 126 S. Ct. 2660 (2006), held that "[j]ust as a violation of Article 36 does not warrant suppression of incriminating statements, it does not require reversal of a conviction." (See also: Martinez v. United States, F.Supp3d , 2006 WL 1310383 [S.D.NY 2006]; United States v. De La Pava, 268 F.3d at 164 - 167) As a state court, I feel bound by the application of a federal treaty by the federal courts and therefore hold that the a violation of the notification provisions of the Vienna Conference is not a basis to vacate a guilty plea.

The defendant would not be entitled to have his guilty plea vacated even if a violation of Article 36 of the Vienna Conference could be a basis for vacating a guilty plea. The defendant has failed to allege what effect, if any, a violation of Article 36 of the Vienna Conference had on his decision to plead guilty.

The defendant's assertion that he did not speak English at the time he pleaded guilty does not require that his guilty plea be vacated.In People v. Ramos, 26 NY2d 272 (1970), the Court stated that while a defendant who does not understand the English language is entitled to have an interpreter translate the proceedings into the language the defendant understands, "[t]he right to an interpreter, however, may be waived where a defendant, or his attorney, fails to call to the attention of the trial court, in some appropriate manner, the fact that he does not possess sufficient understanding of the English language." (26 NY2d at 274) The defendant has not alleged that his attorney was not competent, and therefore, the failure to raise the issue of the defendant's inability to understand English to the court at the time the defendant pleaded guilty, does not require that the defendant's guilty plea be vacated. (People v. Pagan, 12 AD3d 1143, lv. denied, 4 NY3d 766 [2005]; People v. Calizaire, 190 AD2d 857[1993])

Finally, the defendant's reference to the failure to examine the "first offender's federal statutes" is misplaced. The first offender's federal statutes to which the defendant refers is 18 U.S.C.A. § 3607, titled "Special probation and expungement procedures for drug possessors." The statute sets forth the procedures that federal courts may employ for a defendant convicted of an offense described in section 404 of the Controlled Substances Act who has not previously been "convicted of violating a Federal or State law relating to controlled substances." The statute is a federal statute, applicable solely to the federal courts and has no application to state court procedures.

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

October 12, 2006

Laura A. Ward

Acting Justice Supreme