People v Nunez

[*1] People v Nunez 2009 NY Slip Op 50318(U) [22 Misc 3d 1128(A)] Decided on March 2, 2009 Criminal Court Of The City Of New York, Kings County Wilson, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 2, 2009
Criminal Court of the City of New York, Kings County

The People of the State of New York,

against

Gustavo Nunez, Defendant.



2005KN037345



For the People, Charles J. Hynes, District Attorney, Kings County, by Shulamit Rosenblum Nemec, Esq., Assistant District Attorney.

For the Defendant, John L. Russo, Esq.

John H. Wilson, J.

On June 8, 2005, Defendant was charged with Criminal Possession of a Controlled Substance in the Seventh Degree (PL Sec. 220.03), a Class A Misdemeanor, and related charges. On June 10, 2005, Defendant entered a plea of guilty to the above-stated count of the Criminal Court Complaint, and received a sentence of a Conditional Discharge, requiring him to perform 5 days of community service. A surcharge in the amount of $160.00 was also imposed, and the Defendant's New York State Driver's License was suspended for a period of six months.

The court file indicates that the Defendant completed the community service, and paid the surcharge.

To date, Defendant has not appealed his conviction.

By motion dated March 8, 2008, Defendant movespursuant to CPL Sec. 440.10 and 220.60[FN1]to vacate his conviction. He asserts that he received ineffective assistance of counsel, in [*2]that at the time he entered his guilty plea, he was misinformed of the collateral consequences of his conviction.

Attached to his motion papers is Defendant's Affidavit, dated March 16, 2008, wherein he states that his attorney for his plea and sentence advised him "that my plea would not affect my immigration status because it was only a misdemeanor.'" He further states that "had I been aware of the potential for deportation, I would certainly have insisted on a trial in this matter."

Yet, Defendant also asserts that "I took the plea offer at arraignment specifically because it did not involve jail or probation."

The People's Response, dated January 9, 2009, includes an Affirmation from the attorney who represented Defendant at the time of his plea and sentence. In this statement, dated October 31, 2008, counsel states "I have no present recollection of the details of this case, including any communication with (Defendant) regarding the immigration consequences of his plea."

For the following reasons, Defendant's motion is hereby denied.

Before addressing the merits of Defendant's motion, this Court finds that a formal hearing in this matter is unnecessary. This Court presided over Defendant's plea and sentence. As such, this Court may be "presumed to be fully familiar with all aspects of the case.'" See, People v. Demetsenare, 14 AD3d 792, 793 (3d Dept., 2005) citing People v. Loomis, 256 AD2d 808, 808-809 (3d Dept., 1998), lv. den. 93 NY2d 854 (1999). This Court has also reviewed the record of the underlying proceedings, as well as the statements of the relevant parties. Therefore, no formal hearing is necessary.[FN2] See, also, People v. Robetoy, 48 AD3d 881, 883, 851 NYS2d 297 (3d Dept., 2008).

A review of the sufficiency of a Defendant's allegations of ineffective representation of counsel rests within the discretion of the judge to whom the motion is made. See, People v. Tinsley, 35 NY2d 926, 927, 365 NYS2d 926 (1974). To resolve a claim of ineffective assistance of counsel, the court must engage in a two-prong analysis. The court must determine whether counsel's performance was deficient, and whether a defendant suffered actual prejudice as a result of counsel's deficiency. See, People v. McDonald, 1 NY3d 109, 113, 769 NYS2d 781 (2003); Strickland v. Washington, 466 US 668, 104 S. Ct. 2052 (1984); People v. Baldi, 54 NY2d 137, 444 NYS2d 893 (1981).

In McDonald, the New York State Court of Appeals ruled that an attorney's failure to [*3]properly advise a defendant of the immigration consequences of his guilty plea could be a basis for a claim of ineffective assistance of counsel. In that matter, however, the Court denied the defendant's application on the grounds that he failed to "show that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." 1 NY3d at 115, citing Hill v. Lockhart, 474 US 52, 59, 106 S. Ct. 366 (1984).

In following the two prong test enunciated in Strickland, the McDonald court stated that while counsel's "affirmative misrepresentation" regarding whether or not the defendant would be subject to deportation proceedings "falls below an objective standard of reasonableness," the defendant failed to make any showing that he was prejudiced by counsel's misstatement. 1 NY3d at 113-114.

Under McDonald, for a defendant to establish the second prong of the Strickland test, "the sufficiency of defendant's factual allegations as to prejudice should be evaluated with reference to the face of the pleadings, the context of the motion and defendant's access to information." 1 NY3d at 115, citations omitted.

Since counsel for defendant at the time he entered his plea states that he does not remember any discussion with the Defendant regarding the immigration consequences of his guilty plea, the Court will accept Defendant's uncontested assertion that he was misinformed of the repercussions of his plea. Thus, Defendant has established the first prong of the Strickland test - his counsel's performance fell below minimum standards of competent representation.

Defendant seeks to establish the second prong of the Strickland test when he asserts that "had I been aware of the potential for deportation, I would certainly have insisted on a trial in this matter." However, he also asserts that he "took the plea offer at arraignment specifically because it did not involve jail or probation."

A review of the minutes of Defendant's plea and sentence of June 10, 2005, which is attached to Defendant's moving papers, shows that Defendant was initially offered a plea to the charge, and 10 days jail. See Plea and Sentence transcript, p. 2. After hearing the People's application for bail, and after hearing the Defendant's position, this Court offered the Defendant a plea to the charge with community service instead of jail time. After consulting with his counsel, Defendant accepted the Court's offer. See Plea and Sentence transcript, p. 3.

Defendant was instructed that his plea was to Penal Law Section 220.03, "a class A misdemeanor." He was asked by the Court if he was "pleading guilty voluntarily of your own free will," to which the Defendant answered "yes." Plea and Sentence transcript, p. 4. Defendant was then asked if he admitted "that on June 8, 2008, at approximately 7:38 PM, at South 3rd and Dean Street here in the County of Kings you were in possession of heroin," to which question Defendant again answered "yes." See, Plea and Sentence transcript, p. 4.

Defendant was also asked if he understood that he was giving up his right to a trial, his [*4]right to confront the People's witnesses, and the right to remain silent. He again answered "yes." He was then asked by this Court if he was being forced to plead guilty. Defendant answered "no." See Plea and Sentence transcript, p. 4-5.

This Court then asked Defendant if "anyone (made) any other promises to you other than the sentence I have promised." The record shows Defendant answered "no" to this inquiry. See, Plea and Sentence transcript, p. 5.

Defendant declined the opportunity to speak before sentence was imposed. See, Plea and Sentence transcript, p. 5.

"The foregoing sufficiently establishes that defendant's plea was voluntary and knowing." People v. Brown, 126 AD2d 898, 901, 510 NYS2d 923 (3d Dept., 1987), app. den., 70 NY2d 703, 519 NYS2d 1037 (1987). There is no evidence on the record presented that Defendant did not understand the terms of his plea bargain. There are no deficiencies in the plea allocution or inconsistencies in Defendant's responses. His answers were clear and unequivocal.

Most significant, Defendant was specifically asked if any other promise was made to him, other than the sentence, before he plead guilty. Defendant did not tell the court that he was promised his plea would not affect his immigration status.

Though this Court has been unable to locate any case law directly on point in New York, in State v. Quiroga, 2007 WL 1774197 (App. Div., NJ 2007), the defendant there asserted that "his attorney assured him that...he would not be subject to deportation proceedings" as a result of his guilty plea to burglary charges. In denying defendant's appeal, the New Jersey Appellate Division noted that "at the time of the plea (the court) asked defendant: Other than what's been placed on the record, has anybody made any additional promises to you as to what would happen at the sentence if you pleaded guilty other than what we've laid out here on the record?' Defendant answered, No.'" Id. at p. 1.

Further, this Defendant is no stranger to the criminal justice system. On July 18, 2003, he was convicted of Criminal Possession of a Controlled Substance in the Seventh Degree (PL Sec. 220.03) and received a sentence of a Conditional Discharge. He also received a suspension of his driver's license for six months in that matter.

The record of Defendant's plea and sentence shows that at his arraignment, he was initially offered a term of incarceration. See, Plea and Sentence transcript, p. 2. After negotiations between the Court, the People and the Defense, the Court offered Defendant a sentence that did not involve incarceration. See, Plea and Sentence transcript, p. 3. Defendant gained the benefit of a negotiated plea bargain, in which he received a sentence which avoided a possible term of incarceration. See, People v. Bankowski, 134 AD2d 768, 521 NYS2d 809 (3d Dept, 1987). Thus, it is apparent that at the time Defendant entered his plea of guilty, he was more concerned with remaining at liberty than with any future collateral immigration [*5]consequences his plea might entail.

Since Defendant has failed to establish that he was prejudiced by his attorneys' ineffective assistance, the motion dated March 8, 2008 to withdraw his guilty plea is denied.

All other arguments advanced by Defendant have been reviewed and rejected by this Court as being without merit.

This shall constitute the opinion, decision, and order of the Court.

Dated: Brooklyn, New YorkMarch 2, 2009

_______________________________Hon. John H. Wilson, JCC Footnotes

Footnote 1:CPL Sec. 220.60 is not applicable here, since Defendant has already entered his plea of guilty, and has already been sentenced.

Footnote 2:The People request a hearing on the issue of "whether or not the Legal Aid Society had a policy of (informing) alien defendants (of) the impact of their pleas upon their immigration status." This issue is irrelevant to this matter. Even if the Legal Aid Society had such a policy, the existence of such a policy would not establish whether or not this Defendant's attorney had followed said policy.