People v Diaz

[*1] People v Diaz 2012 NY Slip Op 50716(U) Decided on April 25, 2012 Supreme Court, Bronx County Massaro, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 25, 2012
Supreme Court, Bronx County

The People of the State of New York,

against

Juan Diaz aka Francisco Liranzo, Defendant.



6247-1995



For People of the State of New York

Robert T. Johnson, Esq.

District Attorney, Bronx County

(Assistant District Attorney Robert R. Sandusky, III, of Counsel)

For Defendant

Jorge Guttlein, Esq.

David Tortell, Esq.

Jorge Guttlein & Associates

291 Broadway -Suite 1500

New York, New York, 10007

Dominic R. Massaro, J.

Defendant Juan Diaz (a/k/a Francisco Liranzo) moves, pursuant to CPL §440.10, to vacate the judgment against him entered on December 16, 1996. This for Attempted Criminal Sale of a Controlled Substance in the Third Degree (Penal Law §§110 and 220.39[1]). Defendant, a resident alien from the Dominican Republic, claims he did not receive effective assistance of counsel at the time of his guilty plea, especially concerning the plea's impact upon Defendant's immigration status.[FN1]

In essence, Defendant contends his now disbarred trial attorney, Julio Cesar Rojas,[FN2] denied him effective assistance of counsel because (1) he wrongly misadvised Defendant that no deportation proceeding would result from a guilty plea, and (2) counsel failed to investigate Defendant's claimed innocence defense. At least, Defendant says, he is entitled to a factual hearing upon what advice his attorney gave about immigration and innocence.

Defendant relies upon the Supreme Court's decision in Padilla v. Kentucky, — US —, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), as the basis for his argument that criminal trial counsel's failure to properly advise concerning the effect of a guilty plea upon immigration status rises to ineffective assistance of counsel and requires that the guilty plea be vacated. [*2]

According to Defendant, while Padilla expands protection afforded non-citizen defendants in criminal cases, the controlling legal factor is that our Court of Appeals previously found that erroneous advice about deportation consequences constitutes such ineffective assistance of counsel where Defendant says he would not have pled guilty except for that advice (see generally, People v. McDonald, 1 NY3d 109 [2003][affirmative advice given]). Further, Defendant maintains the Court must conduct a hearing to determine whether the plea was coerced as a result of such ineffective assistance of counsel (see generally, People v. Mack, 203 AD2d 131 [1st Dept. 1994]).

According to the prosecutor, Defendant's motion should be denied as unsubstantiated, procedurally barred and meritless. The District Attorney holds there is a complete lack of evidence that Defendant's immigration status is anyway compromised by the guilty plea. Significantly, the record lacks an affidavit from trial counsel about advice given. Especially when focused upon immigration status, Defendant's issues are speculative and proof is lacking that either the Homeland Security Department or the Justice Department are proceeding against him. More than a decade has passed and no federal proceeding has occurred. Additionally, the prosecutor notes, these issues were essentially disposed in an earlier motion filed in 2008 and heard by the Court (Stadtmeyer, J.).

In reply, Defendant says failure to supply a trial attorney's affidavit is not fatal to seeking relief because circumstances surrounding the trial counsel's later and unrelated disbarment excuses production at the time the motion was filed. Potential still exists that federal authorities will take immigration action against him. Beside exposure to deportation, Defendant is mentally disabled and dependent upon federally funded SSI payments as a result of employment related injuries suffered while living in the United States and such payments would be adversely impacted if Defendant was to undergo immigration proceeding.

Relying upon Padilla v. Kentucky, supra., Defendant says he has shown adequate grounds to require an evidentiary hearing for the Court to determine the actual advice provided to Defendant while considering the guilty plea (see generally, People v. Castaneda, 189 AD2d 890 [2nd Dept. 1993]; People v. Liggins, 181 AD2d 916 [2nd Dept. 1992];and People v. Hughes, 181 AD2d 912 [2nd Dept. 1992]).

Legal Discussion

Preliminarily, the Court is asked to order a factual hearing involving the issue of establishing what, if any, immigration advice trial counsel gave Defendant during consultations before entry of Defendant's guilty plea. No dispute exists that the Supreme Court's decision in Padilla, supra., expands protection afforded non-citizen defendants in criminal cases. Notwithstanding, in this instance the Court is not now required to tackle the complexity of Padilla's retroactivity because our Court of Appeals, pre- Padilla, decided that erroneous advice about deportation consequences results in ineffective assistance of counsel where Defendant says he would not have pled guilty except for the advice and actual advice was given (see generally, People v. McDonald, supra.). In this regard, the Court recognizes the need to conduct a hearing upon whether the plea was coerced as a result of ineffective assistance of counsel (see generally, People v. Mack, 203 AD2d 131 [1st Dept. 1994]).

Turning next to Defendant's failure to obtain an affidavit from his now disbarred trial attorney, the Court disagrees that, under these circumstances, Defendant is foreclosed from relief for failure to provide such evidence. This is not an instance where Defendant failed to explain why no affidavit was provided, as in People v. Fu Chen, 293 AD2d 362 (1st Dept. 2002) and People v. Stewart, 295 AD2d 249 [1st Dept. 2002]), but, rather, Defendant presents the difficulty of obtaining such an affidavit under circumstances where trial counsel's disbarment and the resulting natural reluctance associated with a disgraced attorney makes it so.

Therefore, given this record, the parties are to contact the Part Clerk to arrange a factual hearing within 21 days of entry of this order. The Court anticipates the parties will arrange to produce [*3]appropriate witnesses, including former trial counsel, and otherwise provide evidence relevant to the advice issue. The parties are to present legal arguments concerning the impact of the fact no immigration proceeding or investigation has occurred concerning Defendant since his guilty plea sixteen years ago.

BASED UPON the foregoing,[FN3] it is

ORDERED that the parties are to respond to the Court's above directions within 21 days of entry of this order, including scheduling an evidentiary hearing; and it is further

ORDERED that the Clerk is to note upon the Court's records that Defendant's CPL §440.10 motion, seeking to vacate his conviction for Attempted Criminal Sale of a Controlled Substance in the Third Degree (Penal Law §§110 and 220.39[1]), is SUSPENDED pending hearing resolution.

The foregoing constitutes the Order of the Court.

Dated: Bronx, New York

April 25, 2012

_________________________________HON. DOMINIC R. MASSARO, JSC Footnotes

Footnote 1: The Court sentenced Defendant to five years probation.

Footnote 2: See. Matter of Rojas, 242 AD2d 198 [2nd Dept. 1998]).

Footnote 3: The Court read the following papers in this motion: (1) Defendant's Notice of Motion, Affirmation, with exhibits; (2) Affirmation in Opposition; and (3) Affirmation in Response of Jorge Guttlein, Esq., with exhibits.