People v Levy

[*1] People v Levy 2011 NY Slip Op 52511(U) Decided on August 4, 2011 Middletown City Ct Moson, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 4, 2011
Middletown City Ct

The People of the State of New York, Plaintiff,

against

Roderick Levy, Defendant.



09-01752

Robert F. Moson, J.

Defendant, by counsel, moves pursuant to CPL Section 440.10(1)(h) to vacate his plea of guilty which he entered before the Hon. Michael Schwartz on September 23, 2009. Defendant alleges ineffective assistance of counsel, in violation of his Sixth Amendment right to counsel, and cites Padilla v Kentucky 559 U.S. ____, 130 S. Ct. 1473 (2010) as the controlling authority. The thrust of Defendant's claim is that Mr. McCormick, Esq. gave him ineffective assistance of counsel by not advising him of the deportation consequences prior to his plea. Defendant claims that had he known that deportation was a consequence, he would have gone to trial and not taken the plea. The People oppose Defendant's motion, arguing that Defendant has failed to meet his burden of proof under the two prong test of Strickland v Washington, 466 U.S. 668 (1984), as he had prior actual knowledge from his immigration attorney, and therefore entered his plea with knowledge of deportation consequences. By Decision and Order dated June 24, 2011, this Court ordered a fact finding hearing to determine if Defendant received effective assistance of counsel pursuant to the standards set forth under Strickland v. Washington.

A hearing held on July 27, 2011, and the Court received documents and testimony from the following witnesses:

Dennis McCormick, Esq., Counsel to Defendant on the underlying plea,

Tanisha Massie, Esq. Counsel to Defendant on immigration proceedings prior to the plea,

Roderick Levy, Defendant.

Exhibits:

-People's 1 - NYLJ Article of 12/27/10 discussing post Padilla practices

-People's 2 - Letter from McCormick to Levy dated Feb. 26, 2008 discussing plea offer

-People's 3 - Letter from Michele Kenney, Esq. To McCormick re: immigration case

-People's 5 - Copy of summary decision from Immigration Judge dated Sept. 17, 2008

-People's 6 - Copy of Criminal Contempt Charge of July 9, 2009

-People's 7 - copy of cover page of deportation hearing proceedings December 9, 1994

-People's 8 - copy of partial transcript of 12/9/94 deportation hearing re: 212(c) waiver

-People's 9 - copy of Deportation Warning for Failure to depart.

The following findings of fact and conclusions of law are based upon a review of all the [*2]papers submitted and listed in the Decision and Order of this Court dated June 24, 2011, the dockets of Middletown City Court, and the evidence presented during the hearing on July 27, 2011.

Findings of fact:

On April 6, 1994 Defendant was convicted of Criminal Sale of a Controlled Substance in the Third Degree in violation §220.39(1) of the Penal Law of the State of New York. Defendant received a sentence of 1-3 years in a New York State prison. Upon his release on Parole, he was turned over to the U.S. Immigration Department.

At some point in 1994, the Immigration Department brought an action for deportation against the Defendant as a result of his drug conviction. Although the drug conviction was grounds for deportation, Defendant successfully obtained a waiver pursuant to §212(c) of the Federal Laws to remain in the United States.

At some point in 2005, Defendant was detained by the Immigration Department, because a change of law put his §212(c) waiver into question. From 2005 through 2008 Defendant was represented by an immigration attorney by the name of Tanisha Massie. On a few occasions Ms. Massie was assisted by Michele Kenney, Esq., another immigration attorney within her firm. During this time, Defendant was warned by his immigration attorneys that any criminal trouble may lead to deportation. Defendant was not told that any specific crime/offense would lead to deportation as there were too many ways that an alien could be deported.

On October 26, 2007, Defendant was arrested in the City of Middletown for Burglary in the Second Degree, a class C felony in violation of §140.25(2) of the Penal Law of the State of New York, and Criminal Contempt in the Second Degree, a class A Misdemeanor in violation of §215.50(3) of the Penal Law of the State of New York. Five months later, on March 3, 2008, Defendant pled guilty, with counsel (Dennis McCormick, Esq.), to the reduced charge of Disorderly Conduct in violation of Section 240.20 of the New York State Penal Law to cover all the charges outstanding on this docket. Defendant was sentenced to a conditional discharge with a two year Order of Protection, a fine, and mandatory surcharge.

Between his arrest in October of 2007 and his plea on March 3, 2008, there were discussions between Defendant's criminal attorney, Dennis McCormick, and Defendant's immigration attorney, Ms. Massie. According to Ms. Massie, an immigration attorney for over 10 years, the status of the law regarding which offenses were subject to deportation, is not clear cut, but the attorneys felt that a plea to Disorderly Conduct would not adversely affect Defendant's deportation hearing.

After Defendant entered his plea in March, the immigration Judge requested information on the two year Order of Protection which was part of the sentence on the Disorderly Conduct plea. This led to further communications between Mr. McCormick and Ms. Massie/Ms. Kenney until sometime in September of 2008. In September of 2008, Defendant was granted permission under the §212(c) waiver to remain in the United States. Ms. Massie ceased representing Defendant after that point, but before his case was completed, she warned Defendant not to be arrested for any criminal offense as it might affect his waiver status in the future.

On August 3, 2009 Defendant, Roderick Levy, was arrested and charged with the Class A Misdemeanor of Criminal Contempt in the Second Degree in violation of Section 215.50(3) of [*3]the Penal Law of the State of New York. This charge was based upon a violation of an Order of Protection issued by Judge Brockett on March 3, 2008. On September 23, 2009, Defendant pled guilty, with counsel, Dennis McCormick, Esq., to criminal contempt and was sentenced to a fine, mandatory surcharge, and community service.

On November 5, 2010, Defendant was detained by Immigration and Customs Enforcement agents, and removal proceedings began pursuant to 8 U.S.C. Section 1227(a)(2)(E)(ii). This proceeding remains open at this time.

On May 11, 2011, Defendant filed a Motion to Vacate his plea to Criminal Contempt in the Second Degree which he entered on September 23, 2009. This Decision addresses that Motion.

Conclusions of Law:

Defendant's attorney submits that Padilla v Kentucky, 559 U.S.____, 130 S. Ct. 1473 (2010), creates a bright line requirement that an attorney's failure to advise a Defendant of the deportation consequences of his plea constitutes, in and of itself, a deficiency in counsel's performance, thus meeting the first prong of the analysis in Strickland v. Washington, 467 U.S. 1267 (1984). Defendant then argues that having met this first prong of Strickland, the second prong of prejudice is satisfied by the fact that he now faces the extreme consequence of deportation as a result of his plea. While this Court agrees that Padilla changes the direct verses collateral consequence analysis previously applied in New York, this court cannot agree that the Supreme Court's decision in Padilla supports such a bright line rule.

In the opinion of this Court, Padilla merely prevents the categorical denial of Defendant's ineffectiveness claim based upon the long held rule in New York that deportation is a collateral consequence of a guilty plea. Prior to Padilla, New York courts took the position that deportation was a collateral consequence, (as opposed to direct), of a defendant's plea, and therefore was insufficient to show ineffective assistance of counsel on a motion to vacate. (Citations omitted) As a result of this rule, New York Courts would categorically deny a Defendant's claim when the only basis was failure to advise a defendant of deportation consequences. Padilla changes that analysis by holding that the "unique" consequence of deportation is "...difficult to classify as direct or collateral..." and therefore "ill-suited" for categorically evaluating or denying an ineffectiveness claim. (Padilla at 1481-82). Therefore, there must be a more thorough analysis which considers deportation consequences in the totality of the circumstances' analysis set forth in Strickland v. Washington. Accordingly, this court will examine defendant's motion to vacate his guilty plea under the two prong Strickland analysis.

STRICKLAND REVIEW: FIRST PRONG — DEFICIENT PERFORMANCE

In determining a claim of ineffective assistance of counsel the court must follow the two prong analysis articulated in Strickland v Washington, 466 U.S. 688 (1984). The first prong must determine "whether counsel's representation fell below an objective standard of reasonableness." If the answer to that question is yes, the second prong will require the court to determine if "...there a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would be different." Padilla supra at 1482.

Strickland holds that in determining if an attorney's representation falls below an objective standard of reasonableness the court must begin with "...a strong presumption that [*4]counsel's conduct falls within the wide range of reasonable professional assistance." Strickland v Washington, 466 U.S. 668 (1984). Additionally, "Judicial scrutiny of counsel's performance must be highly deferential." at 689. Furthermore, "...a court hearing an ineffectiveness claim must consider the totality of the circumstances...." at 680, which includes that counsel's performance might be influenced by statements made by Defendant to counsel. at 691.

It is clear that defendant's attorney, Dennis McCormick of the Orange County Legal Aid Society, did not specifically address the issue of defendant's immigration status with the defendant prior to his entry of a guilty plea to the charge of Criminal Contempt in the 2nd degree on September 23, 2009. However, when the totality of the facts are considered, it does not appear that Mr. McCormick's representation fell below an objective standard of reasonableness.

Under the Strickland analysis, counsel's representation must be considered in a light of the professional standards at the time of the alleged deficiency. The subject criminal proceedings against the defendant occurred between July and September of 2009, prior to the decision in Padilla. The evidence presented at the hearing indicated that in 2009, it was not standard practice in New York, for counsel to advise a defendant that a conviction on a criminal charge would or could have consequences on the defendant's immigration status. Unlike the facts in Padilla, where there was erroneous information given to the defendant, Mr. McCormick was neither asked nor did he offer any advice regarding the effect of this particular guilty plea upon the defendant's immigration status. Thus under prevailing norms, Mr. McCormick actions were reasonable.

Additionally, notwithstanding that it was not standard practice to advise a client at that time, in this case both the Defendant and Mr. McCormick had an unspoken basis of knowledge regarding deportation consequences. When considering his plea back in 2008, there had been several discussions about the effects of any arrest or plea on the Defendant's alien status. Furthermore, evidence at the hearing indicated that this was not the first time Defendant had been in court, nor the first time he had to consider immigration consequences. Mr. Levy was well versed in the criminal justice system as he had been previously convicted of a felony, served state prison time, spent significant time in immigration detention, and even filed a pro-se motion before the immigration court in an effort to remain in the USA.

This Court is asked to believe that the issue of defendant's deportation never entered into Defendant's thinking because Mr. McCormick failed to give specific advice on this issue before his plea. That request is unreasonable. The defendant's history of immigration proceedings leads this court to believe that the defendant was fully aware that any criminal conviction could have consequences to his legal alien status. The Court does not suggest that the defendant had a duty to make an inquiry, but certainly finds it incredible to believe that he did not independently consider the deportation consequences before he entered his plea. This Court is not inclined to allow a Defendant to create his own constitutional claim by hiding behind counsel's failure to say magic words. (See People v. Taylor and Haqq, 164 AD2d 953(A.D.Second Dept. 1990).

The failure of the defendant to raise the issue of possible immigration consequences with counsel goes to the reasonableness of counsel's actions at the time. As the Strickland court held, "the reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions." Strickland supra. In the case at bar the court cannot say that counsel's advice may not have been influenced by the defendant's silence on the issue of [*5]immigration status. Therefore when considering the entire set of facts of this particular Defendant, and giving deference to counsel's performance, it appears that Mr. McCormick's performance is within the objective standard of reasonableness, and was not deficient.

STRICKLAND REVIEW: SECOND PRONG — PREJUDICE

Although the facts of this case indicate that Mr. McCormick's performance was reasonable under all the evidence presented, an ineffective assistance of counsel claim should also consider whether the Defendant suffered any prejudice as a result of counsel's actions. There must be a reasonable probability that "but for" the attorney's errors the outcome of the proceeding would have been different. Strickland, supra 2056, 2057. Again, Defendant has failed to meet his burden.

The second prong of the Strickland analysis requires that a defendant show that counsel's error affected the outcome of the proceedings. The defendant must "affirmatively prove prejudice", (at 693), and a court should focus its inquiry on "...the fundamental fairness of the proceeding whose result is being challenged." at 696. In Mr. Levy's case, the proceeding was fundamentally fair.

Defendant stood before the court having several prior arrests and convictions. Defendant was assigned counsel, who happened to be the same attorney who assisted him in the past. Defendant appeared with counsel 5 times and discovery was exchanged, before he entered his plea. The complaint alleged a violation of an Order of Protection issued the year before by a Middletown City Court Judge when the Defendant was charged with a similar offense. The People stood ready for trial and there was no evidence presented which indicated that the witness would not have testified at trial. Defendant had already received a lesser offense last year and the People did not offer a plea to a violation this time. Defendant faced a potential sentence of one year in the county jail if convicted at trial. He pled to a class A misdemeanor and received only a fine, surcharge, and community service.

Defendant argues that had he known of the possibility of the loss of his legal alien status and deportation that he would have insisted on going to trial rather than plead guilty. However, defendant offers no evidence that the outcome of a trial would have been substantially different from his guilty plea to the charge. There was no evidence at the hearing to suggest that the complainant would have withdrawn her complaint, or that she would not have cooperated with the People in the prosecution of this matter.

Additionally, in his affidavit to the court, McCormick states that in cases similar to the defendant's case he was able to negotiate a disorderly conduct with the People to resolve the charge. However, to suggest that the People would have offered a disorderly conduct in this particular matter is pure conjecture. The court does not believe it is reasonable that the People would offer another disorderly conduct when the defendant had, in less than a year, violated an order of protection, and appeared before this Court 3 times on harassing type allegations.

Finally, this Court notes, that Defendant's claim that this plea is the sole reason for his current deportation proceeding is a bit disingenuous. Although not fully clarified at the hearing, it appears that Defendant faces deportation based upon his felony drug charge, wherein he was granted a limited waiver to remain in this country. This waiver appears to be similar to the conditional sentences under NY Criminal Law where a Judge may reconsider a sentence if a [*6]Defendant does not stay out of trouble. The testimony received from Ms. Massie indicates to this Court that any type of arrest or conviction may put that waiver in jeopardy, which is quite different from the direct correlation which Defendant proposes. Thus in considering the fundamental fairness of the proceeding and all the circumstances of this case, it does not appear that there is a reasonable probability that "but for" the attorney's errors the outcome of the proceeding would have been different. Defendant received effective assistance of counsel as required by the 6th Amendment of the United States, and his plea was knowing and voluntary. Therefore, Defendant's Motion to vacate his plea of guilty to criminal contempt in the 2nd degree is hereby denied.

The foregoing constitutes the Decision and Order of the Court.

Dated:August 4, 2011

Middletown, New York

__________________

Hon. Robert F. Moson

City Court Judge