People v Noriega

[*1] People v Noriega 2012 NY Slip Op 50514(U) Decided on March 19, 2012 Supreme Court, New York County Weinberg, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 19, 2012
Supreme Court, New York County

The People of the State of New York, Plaintiff,

against

Augustin Noriega, Defendant.



SCI 1776/92



For the People: Office of the Special Narcotics Prosecutor by ADA Paul Harvey, 80 Centre St., NY, NY 10013 (212) 815-0400

For the Defendant: Richard La Salle, Esq., 8801 Roosevelt Ave, 2nd fl., Jackson Heights, NY 11372 (718) 533-0033

Richard M. Weinberg, J.

Defendant was originally charged with Criminal Sale of a Controlled Substance in the Third Degree ( PL §220.39[1]) and Criminal Possession of a Controlled Substance in the Third Degree (PL 220.16 (1), both class B felonies. The charges resulted from defendant's alleged sale of two tin foils of cocaine to an undercover police officer and the recovery of a third tin foil of cocaine from the defendant's pants pocket on February 28, 1992. The defendant subsequently pled guilty, under a Superior Court Information, to the reduced charge of Attempted Criminal Sale of a Controlled Substance in the Third Degree (PL § 110/220.39(1)), a class C felony, in exchange for a promised sentence of five years probation. Defendant, who had been at liberty since arraignment, failed to report to the Department of Probation and failed to return to Court. A bench warrant was issued on May 21, 1992. The defendant was involuntarily returned on that warrant on May 31, 2011 and was remanded by the Court. Prior to sentence, ICE (US Immigration and Customs Enforcement) apparently lodged a detainer against the defendant. He was sentenced to five years probation on June 24, 2011 and was released into the custody of ICE on June 28, 2011.

Defendant, who is being held in an Immigration Detention Facility, now moves to vacate judgment pursuant to CPL 440.10. He alleges that he received ineffective assistance of counsel under the standards articulated in Padilla v Kentucky (130 S Ct 1473) because his attorney failed to advise him of the immigration consequences of his plea and that he now faces deportation as a [*2]result of his attorney's ineffective assistance. Defendant asserts that he would never have accepted the plea offer if he had been advised that he would be deported as a consequence of his guilty plea. All allegations of fact essential to the motion are made solely by defendant and are unsupported by any other affidavit or evidence. Defendant is represented by counsel on this motion.

To prevail on an ineffective assistance of counsel claim, defendant must show that counsel's performance was deficient, that is, it was unreasonable under the prevailing professional norms at the time of representation. Defendant must also show that this deficient performance prejudiced the defendant. Strickland v Washington (466 US 668); People v Mc Donald (1 NY3d 109). In order to establish prejudice under Strickland, defendant "must convince the court that a decision to reject the plea bargain and proceed to trial would have been rational under the circumstances". Padilla, (supra, at 1485).

Defendant was charged with two "B" felonies and faced a maximum sentence of eight and a third to twenty five years in prison if convicted after trial. Defendant, who was represented by counsel, accepted a highly favorable, non-jail disposition and was fully allocuted by the Court prior to the entry of his plea. The People's case against the defendant, as noted above, was a strong buy and bust scenario where the defendant was apprehended within moments of the sale to an undercover officer and within the undercover's view. The defendant also had additional drugs in his possession. Given the strength of the People's case, the likelihood of conviction was a near certainty. Defendant's assertion that he would have gone to trial and risked substantial jail time strains credulity.

Defendant asserts that he now faces deportation as a result of his plea. In reality, defendant now faces deportation because he failed to fulfill his obligations to the Court two decades ago. Assuming, arguendo, that defendant has suffered any prejudice flowing from his conviction, it would be a result of his incarceration following his involuntary return on a bench warrant in 2011, some nineteen years after entry of his plea. Significantly, it was while he was incarcerated that he came to the attention of the Immigration Service. Incarceration increases a defendant's chances of being deported since ICE specifically targets incarcerated individuals. See People v Cristache (29 Misc 3d 720). Rather than being prejudiced by his non-jail disposition in 1992, defendant, himself, actually lessened his chances of being deported by accepting the plea offer. That the defendant was ultimately incarcerated on this case flowed directly and exclusively from his own failure to fulfill his part of the plea agreement in 1992.

Because defendant has failed to make even a prima facie showing of prejudice, the Court need not address his completely unsupported assertion that defense counsel failed to properly advise him pursuant to Padilla v Kentucky (supra).

Even were the Court to address defendant's Padilla claim, it would find the claim to be unavailing. As noted above, a defense counsel's performance is to be evaluated under the [*3]prevailing norms at the time of representation. Padilla, decided in 2010, makes clear that professional norms now require that a defense attorney advise his client on the immigration consequences of a plea. This is a result of recent changes in immigration law which make deportation a virtual certainty following a conviction for broad categories of cases, including narcotics offenses. Padilla places this normative change at about 1995. Defendant's plea occurred in 1992. Defense counsel's performance comported with the then prevailing professional norms. See Bolivar Medina v USA, 12 Civ. 238 (SDNY, 2/21/12).

Additionally, since defendant's motion is based solely on unsupported, conclusory and self-serving claims, the Court may properly deny his motion without a hearing. CPL 440.30; People v McDonald (supra, at 115).

Defendant has failed to establish either ineffective assistance of counsel or prejudice. His motion to vacate judgment pursuant to CPL 440.10 is hereby denied.

This constitutes the decision and order of the Court.

Dated:___________________________

New York, New YorkRichard M. Weinberg

JSC