People v Patrick

[*1] People v Patrick 2009 NY Slip Op 51242(U) [24 Misc 3d 1203(A)] Decided on June 18, 2009 Supreme Court, New York County Conviser, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 18, 2009
Supreme Court, New York County

The People of the State of New York

against

Michelle Patrick, Defendant.



12093/92



Robert Morganthau, District Attorney, New York (Alfred Peterson of counsel), for the People.

Neville O. Mitchell, New York, for defendant.

Daniel P. Conviser, J.

As recounted more fully infra, Defendant was convicted by plea of guilty of the crime of Attempted Criminal Sale of a Controlled Substance in the Third Degree in 1993. She now moves through a notice of motion dated February 27, 2009 to vacate her plea pursuant to CPL 440.10 (1) (h). Defendant's motion is opposed by the People. This is the first occasion upon which Ms. Patrick has sought any relief from a court with respect to her 1993 guilty plea. Defendant's motion was precipitated by her immigration status. Although she has apparently lived lawfully in the United States since her 1993 conviction and raised a family and built a life for herself here, an application she recently made to adjust her status has apparently triggered a review which could result in her deportation from the United States. Ms. Patrick also indicates that under the immigration laws, by virtue of her conviction, she is not able to travel to Grenada, where she was born and raised. The only way either of these circumstances may now be avoided, apparently, is for this Court to vacate her previously entered guilty plea and allow her to proceed to trial on the charges she was arrested for in 1992.

This Court sympathizes with the plight Ms. Patrick finds herself in. Indeed, the Court believes that it would be manifestly unjust to deport her from this country and thus potentially separate her from her family and her young children because of a single narcotics conviction which occurred almost 16 years ago and has not been followed by any other known criminal behavior. The Court also finds, however, that Ms. Patrick has not demonstrated that her previously entered guilty plea should be vacated pursuant to the [*2]facts and law applicable to this motion. The Court therefore denies Defendant's motion [FN1].

STATEMENT OF FACTS

Defendant was indicted for Criminal Possession of a Controlled Substance in the Third Degree and Criminal Sale of a Controlled Substance in the Third Degree with two co-defendants on November 25, 1992. On June 11, 1993, the Defendant pled guilty to one count of Criminal Sale of a Controlled Substance in the Third Degree. Defendant's plea was entered pursuant to a written plea agreement. The agreement obligated the Defendant to cooperate with the district attorney's office and testify regarding the sale of narcotics by her co-defendants. In the event she complied with those conditions, the district attorney's office agreed to allow her to withdraw her guilty plea and plead guilty to the crime of Attempted Criminal Sale of a Controlled Substance in the Third Degree with a recommended sentence of 5 years probation. In the event Defendant violated the plea agreement, it provided that Ms. Patrick would be sentenced to an indeterminate term on her initial plea of between 1-3 years and 8 1\3 to 25 years in state prison. At the time of her plea, Ms. Patrick was represented by Majorie Rifkin of the Legal Aid Society.

In Defendant's plea allocution before Supreme Court Justice Richard Andrias, the Defendant described in significant detail, prompted by questions from the Court, what her role was in the drug transaction. Justice Andrias also summarized the terms of Defendant's plea agreement and the possible sentences she would receive and asked the Defendant in detailed questions if she understood those terms, to which the Defendant responded in the affirmative. The Court noted that the Defendant had consulted with her lawyer regarding the plea. The Court did not ask the Defendant any questions concerning [*3]whether her plea was voluntary, whether she understood any of the rights she was giving up by pleading guilty, whether she understood that she had the right to a trial by jury or whether she understood that immigration consequences might follow from her guilty plea.

On September 8, 1993, Ms. Patrick appeared for sentencing with a newly assigned attorney David Kapner from the Legal Aid Society. The Court (again by Justice Andrias) with the consent of the parties substituted the charge of Attempted Criminal Sale of a Controlled Substance in the Third Degree for the charge of Sale of a Controlled Substance in the Third Degree pursuant to the plea agreement. The Court asked the People, Defendant's counsel and Defendant whether they wanted to say anything and each declined to speak. The Court imposed the probation sentence previously agreed upon. Defendant's counsel stated that: "at this time I am handing my client a written notice of her right to appeal, and I have already pointed out the pertinent portions to her."

Ms. Patrick has submitted an affidavit to the Court in connection with her instant motion dated February10, 2009. In her affidavit she denies having participated in a drug transaction. She asserts that she had difficulty communicating with her initial attorney, Ms. Rifkin, because the Defendant had recently entered the United States from Grenada and had an accent. According to Ms. Patrick, Ms. Rifkin's primary goal was to keep the Defendant out of jail. Ms. Patrick told Ms. Rifkin that she was in the country on a "Multiple Indefinite Visa" but Ms. Rifkin told the Defendant that she should not worry about her immigration status and that she would be able to stay in the United States. Defendant claims she did not understand what an indictment was because she was 23 years old at the time and had only recently entered the United States. Ms. Patrick asserts that at no time was she advised by her lawyer that she had the right to a jury trial or other rights. She claims that at her plea, she would not have been able to tell the judge what had happened, but only answered questions as she had been directed to do by her lawyer. Ms. Patrick says that she is going to be deported from the United States because of her previous felony conviction. She indicates she has two children who are United States citizens, aged 9 and 2 [FN2]. [*4]

In addition to considering the written submissions of the parties, the Court also granted Defendant's request to conduct a hearing with respect to this motion, over the People's objection. The sole witness at the hearing was the Defendant. Ms. Patrick testified that her attorney explained to her at the time of her plea that she would receive 5 years probation and that, with respect to her immigration status, "everything [sic] going to be okay with the five years probation as long as I stay out of trouble."[FN3] Ms. Patrick said that she interpreted this as meaning that she would not have a problem going to and from Grenada. Ms. Patrick said her initial attorney did not explain to her that she had a right to testify on her own behalf. She testified that she did not recall being told that she could go to trial in the case. In response to the question of whether it was explained to her that the case against her would have to be proven beyond a reasonable doubt, Ms. Patrick responded: "Not to my knowledge."[FN4] She asserted that she did not currently know what it meant to appeal a case and that her attorney had never talked to her about her right to appeal. She explained that she had waited 16 years to bring the instant claim because she wanted to visit Grenada with her children.

Ms. Patrick acknowledged that she had admitted to handing narcotics to a police officer when she pled guilty but denied that this had actually happened. She admitted that when she told the judge that she had handed narcotics to an undercover police officer, she had made an untrue statement under oath. She acknowledged that she had discussed various options she had with respect to her case with the initial attorney who had been assigned to represent her. Ms. Patrick asserted that she had told her attorney at the time that she was not guilty, but that her attorney never told her that she had the right to proceed to trial on the charge against her. She acknowledged that she appeared in court with her attorney on twelve occasions and discussed the case with her on twelve occasions but that her attorney never advised her that she had the right to a trial.

The Court did not credit a number of the assertions which Ms. Patrick made in her affidavit and her testimony for several reasons. First, obviously, Ms. Patrick is a profoundly interested witness. As she herself said regarding the importance of prevailing on the instant motion: "My life, children and livelihood depend on it." See Affidavit of Michelle Patrick, February 10, 2009, ¶ 19. Second, it was obvious during her testimony that Ms. Patrick could simply not recall with any precision most of the events surrounding her guilty plea 16 years ago. Third, Ms. Patrick has not asserted any of the claims she is [*5]making here for the past 16 years. She is asserting them now not because of any new evidence or information which has come to light regarding her plea, but because of the immigration problems she is currently facing. Fourth, to the extent Ms. Patrick's claims rely on non-record facts, they are not supported by corroborating evidence of any kind. Finally, some of her claims, as discussed infra, seem incredible on their face.

On the other hand, Ms. Patrick's testimony also indicated to the Court that she was honestly, even now, confused about some aspects of the legal process. The Court understands that at the time of her plea she was likely even more uninformed about the legal system. As recounted in more detail infra, however, her youth, inexperience and naivete in 1993, in the Court's view, did not rise to the level of making her guilty plea unknowing, involuntary or unintelligent.

CONCLUSIONS OF LAW

Defendant's first claim is that her plea was not knowing and voluntary. This claim is based in large part upon the fact that the plea minutes reflect that Justice Andrias did not ask the Defendant any questions about whether her plea was voluntary and did not explain or ask Ms. Patrick any questions about the specific rights (such as the right to a trial by a jury) that the Defendant was waiving by pleading guilty. The claim is further supported by Defendant's contention, contained in her affidavit, that she did not understand the rights she was waiving and her testimony at the hearing that she was never informed by her attorney that she had the right to a trial.

The first potential barrier to this claim is procedural. Under CPL 440.10 (2) (c), a 440.10 motion must be denied by a court where, although sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from that judgment, appellate review, a defendant unjustifiably fails to take any such appeal. The courts have held that this rule is applicable to claims based on purported deficiencies in plea allocutions. As the Court of Appeals has held: "[w]hen, as will usually be the case, sufficient facts appear on the record to permit the question to be reviewed, sufficiency of the plea allocation can be reviewed only by direct appeal." People v. Angelakos, 70 NY2d 670, 672 (1987), quoting People v. Cooks, 67 NY2d 100, 104 (1986). The heart of Defendant's first claim is based squarely on record facts — the questions and answers Defendant gave during her plea colloquy — and the purported deficiencies in that allocution.

Defendant claims she did not know at the time of her plea or her sentence that she had the right to appeal and that this furnishes a justification for failing to perfect an appeal at the time. Yet the sentencing minutes, cited, supra , indicate not only that the Defendant was handed written notice of her right to appeal but that her attorney indicated on the record that he had discussed the relevant portions of that notice with Ms. Patrick. It is clear to the Court that Defendant was informed at sentencing that she had the right to appeal. The Court does not find credible Ms. Patrick's assertion that she had no knowledge or awareness that she had any right to appeal her conviction. While [*6]Defendant's claims largely rely upon the record of her plea allocution, however, her claims also arise from communications she indicates were made between her and her attorney which were not part of the trial record here and therefore could not have been raised on direct appeal. Therefore, the Court has determined that her claims are not barred by virtue of CPL 440.10 (2) (c).

Defendant's claims here, however, may be barred in the exercise of this Court's discretion pursuant to CPL 440.10 (3) (a). This provision allows the denial of a 440.10 motion where, although facts in support of Defendant's motion could with diligence have been made to appear on the record prior to sentencing, the Defendant unjustifiably fails to adduce such matter and the issue is not subsequently determined on appeal.

Here it is clear that, even to the extent Defendant's claim regarding her understanding of her plea and its voluntariness are not based on record facts, any facts outside the record could have been adduced on the record prior to sentencing. See People v. Friedgood, 58 NY2d 467 (1983). Further arguing that the Court should exercise its discretion to deny Defendant's claim here on procedural grounds pursuant to CPL 440.10 (3) (a) is the fact that the Defendant waited almost 16 years to bring her claim. See People v. Dogondea, 3 AD3d 148, 160-161 (1st Dept 2003), lv. denied, 2 NY3d 798 (2004) (Defendant's unjustified delay of over six years in bringing CPL 440.10 motion militates in favor of the exercise of Court's discretion to deny Defendant's motion pursuant to CPL 440.10 [3] [a]). Were Defendant's plea to be vacated at this juncture, it would obviously be difficult or impossible for the People to now try Defendant on these charges. This Court would be entitled to deny Defendant's claim in its discretion pursuant to CPL 440.10 (c) (3). Because Defendant's entire life as she has lived it in the United States since the early 1990's could be severely compromised by the denial of the instant motion, however, the Court has determined not to exercise its discretion and deny Defendant's claim on this basis here and reach the merits of her claim.

In order for defendants to lawfully waive the rights they have when accused of a crime and plead guilty it must be shown that they have "knowingly, voluntarily and intelligently relinquished their rights upon their guilty pleas." People v. Harris 61 NY2d 9, 16 (1983). The law does not impose any uniform required recitation by a defendant when assessing whether this waiver standard has been met. The Harris court also held that in order for a plea to be determined to be knowing, voluntary and intelligent it was not necessary that a court conducting an allocution specifically ask a defendant whether they wished to waive the fundamental rights articulated by the United States Supreme Court in Boykin v. Alabama, 395 US 238 (1969) as being inherent in a guilty plea. Those rights (often now referred to as "Boykin rights") are the privilege against self-incrimination, the right to trial by jury and the right to confront one's accusers. As the Court of Appeals in Harris explained, a court must look at all of the facts and circumstances surrounding a guilty plea to determine if the plea is knowing, voluntary and intelligent: [*7] Though a rigorous and detailed colloquy may be appropriate in certain instances, under most ordinary circumstances such questioning by the Trial Judge would be an unnecessary formalism. The seriousness of the crime, the competency, experience and actual participation by counsel, the rationality of the "plea bargain" and the pace of the proceedings in the particular criminal court are among the many factors which the Trial Judge must consider in exercising discretion. 61 NY2d at16 (citation omitted).

The trial court's allocution of the Defendant in this case was certainly unusual, when compared to current practice, in that while the Court conducted a very thorough and detailed allocution regarding the facts of the crime and the provisions of Defendant's plea agreement, the Court did not ask the Defendant any questions about whether her plea was voluntary or whether she understood the important rights she was relinquishing by pleading guilty. Considering the entire record, however, the Court is convinced that Defendant validly waived her rights and entered a valid plea here.

First, as noted, supra , it was clear that Defendant knowingly admitted her role in the crime. Contrary to the claims in Defendant's affidavit, in addition to answering questions by the Court, the Defendant stated what she had done in her own words on two occasions, indicating that "I was working for him" (that is, one of the co-defendants) and also stating: "He [a co-defendant] walked up to the undercover and said to give him one and I handed it to him and he gave me the money." See Exhibit "B" to Defendant's motion to vacate plea. Indeed, the pre-pleading memorandum submitted to the Court by Defendant in support of her motion now, and submitted in 1993 to the Court at the time of her plea, recounts information from the social worker who interviewed her which also seems to strongly imply that Defendant admitted her guilt to the crime at the time not only in court proceedings but otherwise: Michelle did not minimize the seriousness of the offense nor does she expect others to do so. She does, however, express her remorse for her involvement. This does not excuse her behavior nor do we condone it. This arrest is clearly a departure from her history of law-abiding behavior. Defendant's Pre-Pleading Memorandum, April 15, 1993, last unnumbered page, Exhibit "D" to Defendant's instant motion.

The Court does not find Ms. Patrick's assertion, made for the first time now, that she was simply not guilty of the crime she pled guilty to in 1993 credible.

Second, the plea bargain Defendant entered into was a favorable one for her and reflected a successful effort on the part of her attorney to achieve a result under which the Defendant would not have to serve any jail or prison time. While the charges Defendant faced required a minimum prison sentence of 1-3 years and a maximum term of 8 1/3 to 25 years, the Defendant was allowed to ultimately plead guilty to a lower charge and [*8]receive a probation sentence.

Third, it is clear to this Court that Defendant received effective representation throughout her legal proceedings. As noted above, her attorneys directed the preparation of a pre-pleading memorandum which also included letters of support for Defendant, successfully kept her out of jail during the pendency of court proceedings, negotiated a favorable plea agreement for the Defendant, represented her at numerous court appearances and ultimately achieved a disposition which avoided any jail or prison sentence.

In her affidavit, Defendant avers that at no time did she understand that she would be pleading guilty to a felony and that she had "no idea" that she had the right to a jury trial. She repeated this claim during her testimony at the hearing. The Court recognizes that at the time of her plea, the Defendant was 23 years old and new to the United States. Approximately 6 ½ months passed, however, between Defendant's arrest and her plea. Defendant was represented by counsel from the Legal Aid Society throughout that time. According to the Defendant, she made numerous court appearances. She was indicted by a grand jury. She discussed her case on multiple occasions with her attorney. She was interviewed by a social worker for purposes of a pre-pleading memorandum. Through her attorney, she negotiated and entered into a written plea agreement with the district attorney's office which she then signed. Following the plea agreement an additional period of three months elapsed during which time she apparently had additional discussions with the district attorney's office and a new attorney was assigned to represent her. During her hearing testimony, she admitted that she appeared in Court with her attorneys on twelve separate occasions, talking with her attorneys about her case each time.

The notion that Defendant could go through this entire process without having even the vaguest notion that she was entitled to a trial if she wanted one is, in the Court's view, not credible. Defendant's unsupported assertions, made for the first time almost 16 years after her plea, rather, in the Court's view, are the product of the desperate circumstance Ms. Patrick now finds herself in — subject to deportation unless she can find some way to convince this Court that she did not have even the most rudimentary understanding of what she was doing during her almost year long odyssey through the New York state court system in 1992 and 1993. See CPL 440.30 (4) (d) (court may deny 440.10 motion without a hearing where "[a]n allegation of fact essential to support the motion . . . is made solely by the defendant and is unsupported by any other affidavit or evidence, and (ii) under these and all the other circumstances attending the case, there is no reasonable possibility that such allegation is true."

Pleas have been overturned in other cases where a Defendant was not allocuted concerning any their Boykin rights, as occurred here. In cases the Court is aware of where this occurred, however, there were further deficiencies in the plea allocation conducted by the Court. Those reported decisions also did not recount the extensive history of court [*9]appearances, counsel discussions and a written plea agreement such as Defendant here engaged in. In People v. Pearson 55 AD3d 314 (1st Dept 2008), a plea was vacated where the trial court failed to allocute the Defendant concerning any of his Boykin rights but also failed to inform the Defendant of the enhanced sentence he would receive if he did not successfully complete interim probation supervision. In People v. Robles 2009 WL 596558 (NY Sup. App. Term), a plea was vacated where a Defendant was not allocuted concerning any of his Boykin rights but also was not asked if he had agreed to plead guilty.

Defendant next argues that her plea should be vacated because she received the ineffective assistance of her counsel. Specifically, it is alleged that Defendant's plea attorney, Ms. Rifkin, provided ineffective representation because she did not accurately advise Defendant about the immigration consequences of her plea.

Where ineffective assistance of counsel claims are raised with respect to an attorney's work at a criminal trial, a defendant must demonstrate that her attorney failed to provide her with "meaningful representation". People v. Caban, 5 NY3d 143, 152 (2005). Under the federal standard, ineffective assistance of counsel requires both that counsel's performance must fall below "an objective standard of reasonableness" and also that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different". Strickland v. Washington, 466 US 668, 688; 694 (1984), rehearing denied, 467 US 1267. While New York law applies the first of these tests, New York case law has departed from the second "but for" Strickland prong and adopted "a rule somewhat more favorable to defendants". People v. Turner, 5 NY3d 476, 480 (2005) (citations omitted). Under this New York rule, a defendant need not "fully satisfy" the Strickland prejudice test. Prejudice, under the New York standard, is "a significant but not indispensable element in assessing meaningful representation." People v. Stultz, 2 NY3d 277, 284 (2004), rearg. denied, 3 NY3d 702. A court must review whether counsel's conduct deprived a defendant of a fair trial. People v. Benevento, 91 NY2d 708 (1998).

With respect to the representation of a defendant during a plea, "a defendant has been afforded meaningful representation when he or she receives an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel." People v. Ford, 86 NY2d 397, 404 (1995). Immigration has been held under New York law to be a "collateral" consequence of a guilty plea. In order to provide effective assistance of counsel, it is not necessary that an attorney advise a client of the deportation consequences of a guilty plea. Id. A claim by a defendant that her counsel provided her with inaccurate information regarding her immigration status as a part of a plea agreement is evaluated under the same reasonableness and prejudice test as other aspects of representation. People v. McDonald, 1 NY3d 109 (2003). But where an attorney affirmatively misrepresents the deportation consequences of a guilty plea, the first prong of the Strickland test, that is, whether an attorney's conduct falls below an objective [*10]standard of reasonableness, is satisfied. United States v. Couto, 311 F3d 179, 187-88 (2nd Cir 2002), cert. denied, Couto v. United States, 544 US 1034 (2005).

Defendant's claim here fails, in the Court's view, in multiple respects. First the factual allegations, like other claims in this motion, rely solely upon Defendant's own unsupported assertions made as an interested witness for the first time almost 16 years after her plea. With respect to her ineffectiveness claim, the factual support for the claim is based, as far as the Court can determine, entirely on one statement in her affidavit and a related statement during her trial testimony. In the affidavit, Ms. Patrick averred that: "She [Defendant's initial counsel] said I should not worry about my immigration status. I would be able to stay". Patrick Affidavit ¶ 7. In her hearing testimony, as noted, supra , Ms. Patrick testified that her attorney had told her that "everything [sic] going to be okay with the five years' probation as long as I stay out of trouble". She further testified that she interpreted this statement as meaning that "I wouldn't have a problem to go back and forth to the country"[FN5]. Given the scant evidentiary support for Defendant's claim, her interest in the outcome of this motion and the long passage of time, the Court views the accuracy of Defendant's recollection of her conversations with counsel with skepticism.

Second, even assuming Defendant's assertions are correct, Defendant, in the Court's view has failed to make a prima facie case that she received the ineffective assistance of counsel. This is true, in the Court's view, for two reasons. First, as Defense counsel acknowledges, counsel's advice to Defendant, even assuming it was made as Defendant asserts, was not inaccurate — it was (at the time) incomplete. As Defense counsel explains: Defense counsel assured Ms. Patrick that she would be able to stay in the country. This was of course true, provided Ms. Patrick neither left the country nor was placed in deportation. Since she became aware of her predicament [SIC] has remained in the U.S. Affidavit of Neville O. Mitchell, February 27, 2009 (emphasis added).

Thus, Defendant does not allege that her attorney affirmatively misrepresented the immigration consequences of her plea. Her attorney's conduct thus did not fall below an objective standard of reasonableness even pursuant to the rule announced by the Second Circuit in Couto, supra in 2002and did not satisfy the first prong of the Strickland test.

Second, Defendant has not alleged that her plea would have been different

in any respect had she been more fully apprised of the immigration consequences of her plea.[FN6] In McDonald, supra , the Court of Appeals affirmed the denial of a motion to [*11]vacate a plea in a case where it was conceded that Defendant's counsel had given the Defendant inaccurate advice about the deportation consequences of his plea. The Court held that Defendant had not made a prima facie showing of ineffectiveness because Defendant's "affirmation makes no factual allegation that, but for counsel's error, defendant would not have pleaded guilty". 1 NY3d at 115. Since the second prong of the Strickland test was not satisfied, Defendant's ineffectiveness claim was properly denied. The identical circumstance exists here.

In McDonald, Defendant's argument was premised on a violation of federal constitutional law. Here, Defendant also apparently argues that the more stringent ineffectiveness standards of state law were violated by the communications counsel allegedly made to Defendant. Even under state law, however, this Court holds that the fact that Defendant alleges that her attorney provided her with incomplete, rather than inaccurate advice and the fact that Defendant makes no allegation that her plea would have been different had she received more complete advice, fail to make a prima facie showing that she received the ineffective assistance of counsel.

Next, it is clear that Defendant received a favorable disposition in this case, one that she might very well have elected to take even had she been more fully informed about the immigration consequences of her plea. Thus, it is not clear that Defendant was prejudiced by virtue of the alleged failure of her counsel to more fully inform her about the immigration consequences of her plea. The People allege that the evidence against the Defendant at the time of her 1993 plea was strong and Defendant has presented no evidence or argument which refutes that contention. It is now very difficult for the Court to assess how strong the People's case was in 1993 or how likely it may have been that the Defendant would have been convicted had she proceeded to trial in 1993. These difficulties, however, arise because the Defendant has chosen to make this motion for the first time in 2009.

Finally, Defendant's argument that her initial lawyer provided ineffective representation in 1993 is premised, in large part, on the evolving state of immigration law and immigration law enforcement in the years since Defendant's plea. That is, counsel argued in his written submission that this Court should judge Defendant's lawyers' performance not on the law which was in effect at the time of their representation, but on the law as it has evolved after that time: [T]he law has changed since Ford [the 1995 Court of Appeals case discussed, supra ]. Immigration consequences have become more certain since that time because enforcement has increased. It cannot now be said [*12]that they are not direct consequences of a criminal conviction. In 1996 significant changes in the immigration law rendered the 1995 decision in Ford outdated. Deportation is no longer a mere "possibility" dependant on an individual's "personal circumstances", nor is it dependant on an agency outside of the court's control. Memorandum of Law at 7.

As Defendant's counsel apparently conceded during oral argument on this motion, however, this Court cannot judge the conduct of Defendant's lawyers based on legal rules which did not exist when their advice was given. Their conduct must be judged based on the law as it existed in 1993. Counsel's extensive argument concerning how the evolving state of immigration law is changing the legal landscape applicable to ineffective assistance of counsel claims based on faulty or absent immigration advice by criminal lawyers may well be highly relevant to the obligations of attorneys providing legal advice to criminal defendants in 2009. But the Court does not believe such arguments are relevant in any respect to an ineffectiveness claim premised solely on attorney advice which was given 16 years ago.

For all of these reasons, Defendant's motion to vacate her plea of guilty to the crime of Attempted Criminal Sale of a Controlled Substance in the Third Degree is denied.

Dated: New York, New York________________________

June 18, 2009Daniel P. Conviser, A.J.S.C. Footnotes

Footnote 1: Defendant's predicament is an increasingly common one for non-citizens who are lawfully in the United States and then suffer a criminal conviction. According to a comprehensive study released just two months ago by Human Rights Watch (a study not cited by either party here), between 1997 and 2007, 897,099 non-citizens were deported from the United States after serving sentences for crimes. Twenty percent of this group were in the United States legally. Of these legal residents, 77% were deported for committing non-violent crimes. The report estimates that over one million family members have been separated from loved ones by virtue of deportation due to criminal convictions during this ten year period.

Conviction of an "aggravated felony", including a drug offense, is the basis for mandatory deportation under federal law. Waivers which might have prevented mandatory deportation for persons like Defendant here were largely eliminated or narrowed by amendments to federal law made in 1996. Offenders have also been deported by virtue of misdemeanor convictions. The Human Rights Watch report recounts what it describes as the "devastating effects upon many American families" which these mandatory deportation laws have caused. See Forced Apart (By the Numbers) Non Citizens Deported Mostly for Nonviolent Offenses [United States] Human Rights Watch, Copyright, April, 2009.

Footnote 2: While not applicable to Defendant here, the legislature recently recognized the severe collateral consequences of guilty pleas in drug cases in enacting the Drug Law Reform Act of 2009. Chapter 56 of the Laws of 2009, Part "AAA". Part of the Act (section 4 of Part AAA, adding a new article 216 to the Criminal Procedure Law) authorizes a new judicial diversion program where drug offenders who plead guilty to a drug crime and then successfully complete a drug treatment program may avoid a prison sentence and be allowed to replead to a misdemeanor crime or have their conviction dismissed. While the Act normally requires a guilty plea as a prerequisite to participation in a treatment diversion program, an exception to the guilty plea requirement is allowed where "the entry of a plea of guilty is likely to result in severe collateral consequences". See CPL 216.05 (4) (B). This proviso would seem to clearly apply to defendants who might be subject to mandatory deportation by virtue of a guilty plea and thus would allow non-citizens who are in the United States lawfully to receive drug treatment as alternative to prison without the necessity of pleading guilty and thus potentially facing mandatory deportation.

Footnote 3: Jun 2, 2009 Hearing Transcript (hereafter "Hearing Transcript") at 8.

Footnote 4: Id. at 10.

Footnote 5: Hearing Transcript at 8.

Footnote 6: Defendant's counsel argues in his Memorandum of Law that "had she [Defendant] known the actual consequences of her plea, she would not have taken the plea". However, this assertion is not supported by any evidence, even to the extent of being included in the unsupported allegations made by the Defendant in her Affidavit or during her hearing testimony. See Memorandum of Law of Neville O. Mitchell, February 27, 2009 at 13 (hereafter "Memorandum of Law"); Defendant's Affidavit, February 10, 2009; Hearing Transcript.