People v Tavarez
2012 NY Slip Op 31053(U)
April 4, 2012
Supreme Court, New York County
Docket Number: 3671/2002
Judge: Danny K. Chun
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DECISION AND ORDER
IND. NO. 3671/2002
DANNY K. CHUN, J.
The defendant moves to vacate his judgment pursuant to Criminal Procedure Law 5
440.10 arguing that (1) his attorney was ineffective in advising him about the immigration
consequences of his guilty plea; (2) his guilty plea was made unknowingly, unintelligently and
involuntarily; and (3) his plea was procured by misrepresentation or fraud on the part of the
court. The People oppose the defendantâs motion.
The defendant, a citizen of the Dominican Republic, has been a lawful permanent
resident of the United States since July 1996. The defendant is currently not under removal or
deportation proceedings. However, his Green Card expired in February of 2012, and it is likely
that he will be placed into deportation proceedings for his conviction in this case.
The defendant was charged, under Kings County indictment number 367112002, with two
counts each of Criminal Sexual Act in the First Degree (PL 9 130.50) and Criminal Sexual
Act in the Third Degree (PL 6 130.40), three counts of Sexual Abuse in the First Degree (PL 6
130.65), and two counts of Sexual Misconduct (PL 0 130.20).
On June 16,2003, the defendant pleaded guilty to Criminal Sexual Act in the Third
Degree. During the plea proceeding, the defendant was promised a sentence of five yearsâ
probation (Di Mango, J. at plea). On August 11,2003, the defendant appeared for sentencing.
After an off-the-record discussion, the defendant was sentenced to 10 yearsâ probation (Collini, J.
at sentence). Neither the defendant nor his defense counsel objected to the change in the
The defendant did not appeal the judgment of conviction.
The defendant now moves to vacate the judgment of his conviction, alleging that his
attorney was ineffective in that he did not advise him about the immigration consequences of his
guilty plea. Defendant argues that had he known that the guilty plea would result in the
commencement of removal proceedings or a denial of his status as a legal permanent resident in
the United States, he would not have pled guilty. In addition, he alleges that his guilty plea was
obtained in violation of due process because it was an unknowing, unintelligent and involuntary
guilty plea. The defendant argues that he should have been given an opportunity to withdraw the
guilty plea and stand trial when the sentencing judge imposed a greater sentence than that which
was promised during the plea proceeding. For the same reason, the defendant argues that the
guilty plea was procured by misrepresentation or fraud on the part of the court, and therefore the
judgment should be vacated.
Ineffective Assistance of Counsel
A defendant in a criminal proceeding is constitutionally entitled to effective assistance of
counsel. Strickland v. Washington, 466 US 668 (1984); People v. h a r e s , 2 N.Y.3d 507,5 10
(2004); see U.S. Const., 6âhAmend.; N.Y. Const., art. 1 $6. Under the two-prong test of the
federal standard, a court must decide (1) whether the counselâs performance fell below an
objective standard of reasonableness and (2) whether the defendant suffered actual prejudice as a
result. Hill v. Lockhart, 474 U.S. 52, 58-59 (1985); Strickland v. Washington, 466 U.S. 668,687
(1984). In order to satisfy the second prong, a defendant must show that there is a reasonable
possibility that, but for the counselâs error, he would not have pled guilty and would have
insisted on going to trial. Hill v. Lockhurt at 59.
In New York, â[s]o long as the evidence, the law, and the circumstances of a particular
case, viewed in totality and as of the time of the representation, reveal that the attorney provided
meaningful representation, the constitutional requirement will have been met.â People v. Baldi,
54 N.Y.2d 137, 147 (1981). âIn the context of a guilty plea, a defendant has been afforded
meaningful representation when he.. . receives an advantageous plea and nothing in the record
casts doubt on the apparent effectiveness of counsel.â People v. Ford, 86 N.Y.2d 397,404
(1995). Thus, âwhere a defendant, on the advice of counsel, has entered a plea of guilty and
reaped the benefits of a favorable plea bargain which substantially limits his exposure to
imprisonment, he has received adequate representation.â People v. McClure, 236 A.D.2d 633,
633 (2d Dept 1997).
Also, in New York, a defendant must satisfy the âprejudiceâ requirement by showing that
absent counselâs alleged error, he would have insisted on a jury trial. People v. Rodriguez, 188
A.D.2d 623 (2d Dept 1992). In order to establish that the defendant would have insisted on
going to trial, an affidavit setting forth the factors that a defendant considers in accepting a plea
must be submitted to the court. People v. McDonald, 296 A.D.2d 13, 19-20 (3d Dept 2002).
Some of the factors that must be set out in such an affidavit are the strength of the prosecutionâs
case, the availability of a defense, the likelihood of success at trial, a comparison of the sentence
promised with the potential incarceration the defendant faced if convicted after trial, counselâs
advice as to the reasons to accept .the plea bargain and a reason why the defendant admitted
committing the act. Id. An unsubstantiated claim that the defendant would have insisted on
proceeding to trial is insuficient. See People v. McKenzie, 4 A.D.3d 437,440 (2d Dept 2004);
People v. Melio, 304 A.D.2d 247,251-52 (2d Dept 2003). There must be objective facts
supporting such a claim. Melio at 25 1-52.
The defendantâs claim of ineffective assistance of counsel is based upon the United States
Supreme Courtâs holding in Padilla v. Kentucky, -U.S.-,
130 S.Ct. 1473 (2010), which was
decided seven years after the defendant was sentenced. As the Appellate Division-Second
Department summarized, the Supreme Court held in Padilla that âwhere the deportation
consequences of a plea of guilty are clear, defense counsel must provide accurate immigration
advice, and where the deportation consequences are unclear or uncertain, defense counsel need
do no more than advise the defendant that the plea could have adverse immigration
consequences.â People v. Marino-Afftati, 88 A.D.3d 742,743 (2d Dept 201 1).
To date, there is no New York appellate court decision binding on this court on the issue
of whether Padilla is to be applied retroactively in post-conviction proceedings. The United
States Supreme Court did not directly address the retroactivity issue in its Padilla decision and
has recently denied a petition for a writ of certiorari involving this issue. Khaburzania v. New
York, 132 S.Ct. 1005 (Jan. 09,2012). Both federal and state courts have wrestled with the
question of Padillaâs retroactive effect, and there have been multiple, differing opinions. There
are courts that have applied Padilla retroactively (See United States v. Obonaga, 20 10 WL
2710413 (EDNY June 30,2010) citing People v. Bennett, 28 Misc.3d 575 (Crim Ct New York
City, Bronx County 2010); People v. Gasperd, 201 1 WL 6014460 (Sup Ct Kings County 201 1);
People v. Nunez, 30 Misc.3d 55 (App. Term, 2d Dept 2010)), and there are courts that have held
that Padilla should not be applied retroactively (See Hamad v. United States, 201 1 WL 1626530
(EDNY April 28,201 1); G a c b v. United States, 2010 WL 2076020 (EDNYMay 20,2010);
People v. Sanchez, 29 Misc.3d 1222(A) (Sup Ct Queens County 2010); People v. Lorente, 2012
WL 470456 (Sup Ct Queens County 2012)).
In order to decide whether Padilla applies retroactively, the court must determine whether
Padilla created a new rule, which generally is not retroactive, or merely applied an old rule to a
new set of facts, which would apply retroactively. See Teague v. Lane, 489 U.S. 288 (1989).
â[A] case announces a new rule when it breaks new ground or imposes a new obligation on the
States or the Federal Government.. . To put it differently, a case announces a new rule if the
result was not dictated by precedent existing at the time the defendantâs conviction became
final.â Teague at 301. A new rule is generally not retroactive unless it is such a âwatershed ruleâ
that it âalter[s] our understanding of the bedrock procedural elements essential to the fairness of a
proceeding.â Hamad v. United States, 201 1 WL 1626530 (EDNY April 28,201 1) citing Beard
v. Banks, 542 U.S. 406,417-1 8 (2006); People v. Eastman, 85 N.Y.2d 265,275-76 (1 995). This
exception is so narrow that the only rule ever specially determined by the Supreme Court to be
retroactive was the âright to counsel,â as established in Gideon v. Wainwright, 372 U.S. 335
(1963). Hamad at 2. On the contrary, if the case âapplies a well-established constitutional
principle to a new circumstance, it is considered to be an application of an âoldâ rule, and is
always retroactive.â Eastman at 275; see also Yates v. Aiken, 484 U.S. 21 1 (1988).
Prior to Padilla, the Supreme Court had not addressed defense counselâs obligation to
advise clients about the potential immigration consequence of a guilty plea. Accordingly, the
federal circuits held that deportation was a collateral consequence of conviction and that counsel
could not be deemed ineffective for failing to advise a defendant about the immigration
consequences of his plea. See United States v. Gonzalez, 202 F.3d 20 (1st Cir 2000); United
States v. Santelises, 476 F.2d 787 (2d Cir 1973); United States v. Del Rosario, 902 F.2d 55 (D.C.
Cir 1990); United States v. Yearwood, 863 F.2d 6 (4th Cir 1988); United States v. Banda, 1 F.3d
354 (5th Cir 1993); UnitedStates v. George, 869 F.2d 333 (7th Cir 1989); United States v. Fry,
322 F.3d 1198 (9th Cir 2003); Broomes v. Ashcroft, 358 E.3d 1251 (10th Cir 2004); United
States v. Campbell, 778 F.2d 764 (1 lth Cir 1985).
It was also settled in New York that the mere failure to advise a defendant of the
possibility of deportation did not constitute ineffective assistance of counsel. See People v.
McDonald, 1 N.Y.3d 109(2003); People v. Leybinsky, 299 A.D.2d 494 (2d Dept 2002); People v.
Ford, 86 N.Y.2d 397 (1995). A court could find that a defense attorney rendered ineffective
assistance if that attorney afirmatively made misstatements about the immigration consequences,
but even then, only where the defendant established that he was prejudiced by counselâs error.
See People v. McDonald, 1 N.Y.3d 109 (2003).
Upon consideration of the foregoing, this court finds that Padilla should not be applied
retroactively. In Padilla, the Supreme Court departed from both federal and state precedent by
eliminating the distinction between the direct and collateral consequences of conviction and
imposed a new obligation on defense attorneys to provide immigration advice to clients
contemplating a guilty plea. In devising a new rule, Padilla was not âdictated by precedentâ on
the federal or state level (Teague, 489 U.S. at 301; Eastman, 85 N.Y.2d at 275-76), and it
overruled prior authority from the circuit and state courts (Butler v. McKellar, 494 U.S. 407,
412( 1990)). As it established a new rule that departed from past precedent, Padilla should not be
interpreted as having retroactive effect. Therefore, Padilla is not applicable to the defendant in
this case, since his conviction predates Padilla by approximately seven years.
Applying the two-prong test of federal effectiveness of counsel (Strickland v.
Washington,466 U.S. 669) and the New York state standard of âmeaningful representation
(People v. Benevento, 91 N.Y.2d 708; People v. Baldi, 54 N.Y.2d 137), the court finds the
defendantâs contention that his attorney was ineffective in assisting him without merit. Under the
first prong of the Strickland test, the defendant failed to show that the counselâs representation
fell below an objective standard of reasonableness. In 2003, when the defendant was sentenced,
a defense counsel would not have been ineffective for failing to advise his client of the
immigration consequences of his guilty plea. It should be noted that the defendant alleges that
his attorney failed to give him advice regarding the immigration consequences all together and
not that he misadvised him. Under the same analysis, the defendant failed to show that his
attorney did not meet the New York standard of âmeaningful representation.â
Nevertheless, the court will also address the defendantâs failure to demonstrate actual
prejudice under the second prong of the Strickland test. The defendant contends that had he
received accurate immigration advice, he would have rejected the plea bargain and proceeded to
trial. At trial, the defendant would have faced evidence of guilt, including testimony from the
complainant and the medical examiner, which would have corroborated the complainantâs
testimony by revealing anal lacerations consistent with the allegations. Identification was not an
issue in this case because the complainant knew the defendant.
In addition, having been charged with two counts each of Criminal Sexual Act in the First
Degree and Criminal Sexual Act in the Third Degree, three counts of Sexual Abuse in the First
Degree, and two counts of Sexual Misconduct, the defendant was exposed to a potential sentence
of up to 25 years followed by a period of post-release supervision of up to 10 years, after which
he would have potentially been deported. See P.L. Â§$70.80(4), (9); 70.45(2)(b), (i). In exchange
for his plea to Criminal Sexual Act in the Third Degree, the defendant was sentenced to 10 yearsâ
probation. In this instance, his counsel negotiated a highly beneficial disposition. Therefore, the
court finds that the defendant was provided with meaningful representation and effective
assistance of counsel under both the federal and state standards.
Modification of the Sentence
It is fundamental that a sentencing court may not impose a sentence greater than the one
bargained for without first affording an opportunity to withdraw the plea and stand trial. See
People v. Farrar, 52 N.Y.2d 302; People v. McConnell, 49 N.Y.2d 340. It is also well settled
that the court has an inherent power to correct an unlawful sentence. People v. Hollis, 309
A.D.2d 764,765 (2d Dept 2003); see People v. DeValle, 94 N.Y.2d 870,871-72. However,
when the unlawful sentence is the product of a negotiated plea agreement, and the sentencing
court is unable to fulfill the promise due to the illegality of that sentence, the appropriate remedy
is to give the defendant the opportunity to either accept an amended lawful sentence or withdraw
his plea of guilty and be restored to pre-plea status. People v. Hollis, at 765; see People v.
Selikofi 35 N.Y.2d 227, cert denied 419 U.S. 1122; see also People v. Annunziata, 105 A.D.2d
709 (2d Dept 1984). Notwithstanding these principles, if the defendantâs claim has not been
preserved and where the sentence imposed in lieu of that which had been promised was not
abusive or illegal, the defendantâs request to withdraw his plea will not be granted. People v.
Ifill, 108 A.D.2d 202,203 (2d Dept 1985); People v. Marinaro, 45 A.D.3d 867,869 (2d Dept
In this case, the defendant failed at the time of sentencing to argue that the changed
sentence violated a promise made at the plea proceeding or otherwise object to the amendment of
the sentence. Furthermore, the sentence that was ultimately imposed was not abusive or illegal.
To the contrary, the original sentence of five yearsâ probation was illegal as the probation period
for a felony sexual assault âshall beâ 10 years. PL Â§65.00(3)(a)(iii). It is well settled that âany
sentence promised at the time of the plea is, as a matter of law and strong public policy,
conditioned upon, inter alia, it being lawful.â People v. Branch, 2 A.D.3d 872, 872 (2d Dept
2003); People v. Selikofl, 35 N.Y.2d 227,238, cert denied 419 U.S. 1122. Therefore, the
defendantâs request to have his judgment vacated is denied.
However, even if, arguendo, the claim was preserved, the court does not find that the
defendant is entitled to have his judgment vacated. It has been 10 years since the defendant w s
indicted in this case, and it would be prejudicial to the People if the defendant was allowed to
withdraw his plea at this late point in time and go to trial. See People v. Annunzjata, 105 A.D.2d
709 (2d Dept 1984) (holding that withdrawing the plea and going to trial three years after the
indictment would prejudice the People). To be clear, the defendant is not requesting to reduce
his sentence to conform with the original plea bargain, but to vacate his judgment all together.
Therefore, even if the argument was preserved, the defendantâs claim on this ground would be
Wherefore, the defendantâs motion to vacate his judgment is denied in its entirety.
The foregoing constitutes the decision, opinion and order of the court.
Dated: Brooklyn, New York
- 5 2012
NANCY T SUNSHINE
You are advised that your right to an appeal from the order determining your motion is not
automatic except in the single instance where the motion was made under CPL $440.30( 1-a) for
forensic DNA testing of evidence. For all other motions under Article 440, you must apply to a
Justice of the Appellate Division for a certificate granting leave to appeal. This application must
be filed within 30 days after your being served by the District Attorney or the court with the court
order denying your motion.
The application must contain your name and address, indictment number, the questions of law or
fact which you believe ought to be reviewed and a statement that no prior application for such
certificate has been made. You must include a copy of the court order and a copy of any opinion
of the court. In addition, you must serve a copy of your application on the District Attorney.
APPELLATE DIVISION, 2ND
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Brooklyn, NY 11201
Kings County Supreme Court
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Kings County District Attorney
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