People v Castillo

[*1] People v Castillo 2012 NY Slip Op 50798(U) Decided on May 7, 2012 Supreme Court, Kings County McKay, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through May 8, 2012; it will not be published in the printed Official Reports.

Decided on May 7, 2012
Supreme Court, Kings County

The People of the State of New York, Plaintiff,

against

Julian Castillo, Defendant.



1690-03



For the People:

Hon. Charles J. Hynes, District Attorney

Assistant District Attorneys Terrence Heller and Thomas Casey, of counsel

For the Defendant:

Sheilah Fernandez, Esq.

Legal Aid Society Appeals Bureau

Joseph Kevin McKay, J.

This is a CPL 440 motion which initially raised both 440.10 (challenging the conviction) and 440.20 (challenging the legality of the sentence) claims under the authority of Padilla v Kentucky, 559 US ___, 130 SCt 1473 (2010), as retroactively applied.[FN1] Pursuant to Court Order, a CPL 440.30-5 evidentiary hearing was held on March 15 and April 16, 2012. In argument and post-hearing submissions the defense expressly limited defendant's claim for relief to CPL 440.20, to vacate his sentence, and abandoned the CPL 440.10 claim to vacate his conviction by plea.

FACTS

The People alleged that on November 23, 2002, while a customer at a restaurant located at 336 Rodney Street in Brooklyn, defendant became intoxicated and argued with complainant, Rolando Collado, ("Collado"), another customer, which turned into an assault with a wooden stick or bat. Defendant hit Collado in the head with the instrument, and then again on the shoulder, and then fled. As a result, Collado suffered a large gash on the back of his head, and was taken to the hospital, where he was diagnosed with a depressed skull fracture. Collado underwent surgery to remove a blood clot that had developed in his head. On March 1, 2003, more than three months after the incident, defendant was identified by Collado and arrested.

Defendant subsequently testified in the Grand Jury that Collado provoked and pushed him. Defendant admitted he hit Collado, claiming he swung a broomstick at him horizontally, but denied [*2]hitting him on the head. The Grand Jury indicted defendant ( Indictment No. 1690-03) with one count of Assault in the First Degree (Penal Law § 120.10[1]), two counts of Assault in the Second Degree (Penal Law § 120.05[1] [serious physical injury] and [2] [causes physical injury by means of a dangerous instrument]), one count of Assault in the Third Degree (Penal Law § 120.00[1]), and one count of Criminal Possession of a Weapon in the Fourth Degree (Penal Law § 265.01[2]).

After arraignment, the People initially offered defendant a plea to the lesser-included crime of Attempted Assault in the First Degree (Penal Law § 110.00/120.10[1]), with a recommended sentence of three and one-half years in prison, which would have also included a period of post-release supervision, which was refused by defendant. He was incarcerated in lieu of bail until his release pursuant to a CPL 30.30(2)(a) motion on December 22, 2003.

On February 27, 2004, defendant failed to appear in court and a bench warrant was issued. On May 8, 2009, more than five years later, defendant was involuntarily returned to court on a bench warrant and remanded to custody. On June 17, 2009, defendant, represented by Herbert Moses, Esq., accepted a reduced offer from the People and pleaded guilty to Attempted Assault in the Second Degree (Penal Law § 110/120.05-1) in full satisfaction of the indictment (Foley, J., at plea) with an agreed upon promised sentence of one year incarceration. At the plea proceeding, Mr. Moses stated that defendant understood he was to receive a sentence of one year, and further acknowledged that he discussed the possible immigration consequences with defendant through an interpreter "and he understands that judge," to which defendant assented. (See Transcript of Proceedings, June 17, 2009 at 3.)

On July 8, 2009, at the sentencing proceeding before me, the following colloquy ensued regarding the immigration consequences of defendant's conviction:

THE COURT: [W]as there any discussion about immigration?"

MR. MOSES: I have explained to him on, before he took the plea with the assistance of a Spanish interpreter and understands this felony conviction will adversely affect his immigration status.

THE COURT: Well, all right. I don't know all of the facts about his status but, he should expect to be deported based on this conviction.

MR. MOSES: Well I believe he has a green card. He is here legally but, you know, I explained to him this could affect his immigration status.

THE COURT: Okay. As long as he is not under the impression the Court is somehow guaranteeing that immigration won't take action. We are not doing anything of the kind.

(Transcript of Proceedings, July 8, 2009 at 2-3.)

The defendant, having declined to address the Court, was then sentenced to a definite jail term of one year (McKay, J., at sentencing). Because he had already served 359 days in jail, he was immediately released by Corrections. There was no "hold" lodged by Immigration and no enforcement action was then initiated. Defendant waived his right to appeal and never appealed from his judgment of conviction. [*3]

Almost two years after defendant's sentencing, on May 10, 2011, defendant was arrested in Bronx County for a felony which was later dismissed on November 16, 2011. On May 19, 2011, while defendant was in custody on the Bronx County case, he was served with an Immigration Notice to Appear, charging him with being removable from the United States for having been sentenced to a one-year term of imprisonment on his conviction in the instant case. He was subsequently taken into custody by Immigration. Now, by papers dated November 22, 2011, defendant moves through counsel for an order "vacating" his sentence and re-sentencing him to 364 days in jail.

THE HEARING

Defendant's case consisted of the testimony of Herbert Moses, Esq., the plea and sentence minutes and a letter from the New York City Department of Corrections attesting to the fact that defendant had spent 359 days in jail in this case by the date of sentence. Defendant did not testify. I substantially credit the testimony of Mr. Moses, although I find that his recall of certain aspects of the proceedings was less than exact and therefore at times he had to testify about his general practice as opposed to what he specifically said and did in this case.

I find that Mr. Moses asked defendant whether he was a U.S. citizen and defendant informed him he was not but that he had a green card (i.e., that he was a lawful permanent resident). Mr. Moses thought the initial plea offer of 3 ½ years was a "little high." On the day of defendant's plea, June 17, 2009, Mr. Moses and ADA Lance Ogiste, who later testified at this hearing on behalf of the People, had a bench conference before Justice Foley. In an effort to bargain down from the initial offer, Mr. Moses asked Mr. Ogiste for a plea involving a sentence of less than one year — perhaps a 6 month split or 9 months jail, because Mr. Moses knew defendant had already served all of that time in jail and his objective was to get defendant out of jail. Mr. Ogiste came back with the counter-offer of a plea to Attempted Assault in the Second Degree (an E non-violent felony under New York State law) with a one year sentence and refused to go lower.

Acknowledging the complexity of the ever changing immigration law, Mr. Moses had general knowledge that a sentence of less than a year (even by one day) would be better for defendant's immigration status and might even avoid his deportation but he never asked Mr. Ogiste for a sentence of one day less. He believed Mr. Ogiste was " resolute" about the one year. He never discussed a sentence of 364 days with defendant. Mr. Ogiste never made deportation a condition of defendant's plea. Based upon his usual practice Mr. Moses believed he would have told defendant that "you will be deported" or "you are going to get deported if you take this plea" but he does not believe he would have used the words that it was "possible" that defendant would be deported if he took the plea. However, based on the colloquy at sentence quoted previously, I do believe he conveyed less than certainty to the Court and defendant about the prospects of deportation, perhaps explainable by the gap between the law and its enforcement. Since the plea offer was made by the People and not the Court he did not ask the sentencing Court to sentence defendant to 364 days.

The People's case on the hearing consisted of the testimony of Assistant District Attorney Lance Ogiste, whom I also find to be credible, while I recognize that he too had recall problems about the specifics of this case similar to Mr. Moses. Mr. Ogiste has been an attorney in the District Attorney's Office for 25 years, with significant trial experience, and presently is Counsel to the District Attorney, a title which he held in June 2009 at the time of defendant's plea. At that time, along with numerous executive assignments, including oversight of cases involving immigration [*4]consequences, he was given the additional duty of helping to clear a backlog of cases in the Gray Zone by reviewing the older ones and appearing in Court to negotiate pleas. Mr. Ogiste was approached on at least two occasions by Mr. Moses, whom he knew as both a former Brooklyn Assistant District Attorney as well as a practitioner, regarding defendant's case. Having evaluated the case, Mr. Ogiste decided that an offer of a plea to Attempted Assault in the Second Degree and one year jail was appropriate, given the current unavailability of at least two key witnesses. He refused Mr. Moses' requests to go lower, however, because he did not believe defendant deserved anything less in light of the nature of the violence involved in the case, and the fact defendant absconded for five years. The People, despite having witness availability issues, would have made every effort to be ready for trial in the remaining speedy trial time allotted if defendant did not take the offer and would have asked for higher than the minimum allowable sentence if defendant was convicted after trial.

As noted previously, deportation was not a condition of the plea offer, which was in effect a "time served" plea. Mr. Ogiste must have had general knowledge that this plea would create deportation problems for defendant, which he regarded as defendant's own problem, not the prosecutor's. I am not convinced, however, that Mr. Ogiste specifically considered deportation when he made the one year offer, nor was he focused on the possibility of a 364 day sentence and the difference that would mean for defendant. Mr. Ogiste did not recall whether Mr. Moses specifically asked for one day less than one year, which I find did not happen, but he was certain that he declined Mr. Moses' requests to go lower than a year. Mr. Ogiste recognized that defendant could fly under the radar of Immigration by accepting the plea offer and remaining out of jail and out of future trouble with the criminal justice system, even if this conviction rendered him deportable.

ARGUMENTS OF COUNSEL

Two key issues were agreed upon by both sides and accepted by the Court. First, defendant's plea and sentence, as imposed, subjected him under the immigration statutes as an aggravated felon to deportation without the opportunity for most waiver or cancellation of removal relief. See 8 USC § 1227(a)(2)(A)(iii); 8 USC § 1229b(a)(3). Second, that had defendant received less than one year in jail as a sentence, even one day less, he would have not have been subject to deportation. See 8 USC § 1101(a)(43)(F).

Defendant maintains that Mr. Moses was deficient during plea negotiations for not requesting a sentence of 364 days (which he argues Mr. Ogiste would likely have agreed to) since Mr. Moses admitted knowing that such sentence would have saved defendant from automatic deportation. Defendant also contends that Mr. Moses was ineffective for failing to ask the sentencing Court to impose a sentence that was only a day less than the negotiated sentence, arguing that there is a reasonable probability that the District Attorney would not have objected to the sentencing Court's exercise of discretion in that fashion, nor would the People have appealed from that judgment.

As for the remedy for the alleged ineffectiveness defendant seeks a re-sentence of defendant by the Court nunc pro tunc to 364 days in jail. This would avoid a de novo sentencing proceeding at which the People could object to the lesser sentence, causing the Court to allow the People to withdraw their consent to the plea offer, and placing defendant in "the worse position" of facing an open case and a possible Assault in the First Degree conviction, with a determinate prison sentence range between 5 to 25 years and certain deportation thereafter. Defendant's "Post-hearing Reply [*5]Memorandum" emphasizes that his claim of ineffective assistance of counsel is not premised on counsel's failure to inform him of the deportation consequences of the plea offer, but rather that Mr. Moses was ineffective during plea negotiations and at sentencing for not achieving a sentence of 364 days in jail.

The People argue that it is far too speculative that such a sentence would have been offered by the prosecutor or unilaterally imposed by the Court, and that the evidence in this record is to the contrary. The People further maintain that the sole remedy for a defendant deprived of the effective assistance of counsel based on a Padilla violation is vacatur of the judgment of conviction and a trial court is not authorized to re-sentence a defendant based on such a violation. The People also argue that defendant should have testified at the hearing to meet his 440 burden of proof.With particular reference to defense attorney's plea bargaining obligation, the prosecution notes that Padilla's reference to negotiating a creative plea was merely dictum and did not impose an affirmative duty upon defense counsel to negotiate a plea bargain that avoids deportation. Finally, the People contend that defendant has not demonstrated prejudice since the hearing record indicates that Mr. Ogiste refused to offer defendant a sentence of less than one year and defendant has not shown that he would have insisted on going to trial had the significance of a 364 day sentence, if sought but not achieved, been explained to him.

CONCLUSIONS OF LAW

Defendant's sentence of one year in the custody of New York City Department of Corrections was statutorily lawful for the conviction by guilty plea to Attempted Assault in the Second Degree (Penal Law § 110/120.05-1), an E non-violent felony (Penal Law § 70.00-4). That conclusion is not necessarily dispositive of this motion, however, because counsel claims the sentence was an unconstitutional product of ineffective assistance of counsel.

I recognize that defense counsel is making what I will characterize as a creative effort to persuade the Court, aided by the latest plea bargain decisions from the United States Supreme Court cited below, to apply and extend Padilla in a novel way to this arguably special set of facts. As the prosecutor correctly argued, neither Padilla nor the C.P.L. give the Court authority to re-sentence Castillo as requested. The one day in jail difference at issue here could be said to present an especially appealing, even sympathetic, case, and clearly is the reason a hearing was ordered. Upon further consideration, however, one could easily envision a scenario where a Court ruling granting this relief would tend to require defense counsel to seek as a Sixth Amendment constitutional matter, and the Court to acquiesce in, a one day reduction in every one year sentence which rendered a client removable. Of course, in deserving cases it should be sought and considered. Unfortunately, Castillo has not been shown to be such a case.

I therefore conclude that defendant has failed to carry his required burden of proof by a preponderance of the evidence (CPL 440.30-6) that the sentence was the product of an unconstitutional lack of effective assistance of counsel pursuant to Padilla v Kentucky, supra, nor under Lafler v Cooper, ___ US ___ , 132 SCt. 1376 (2012) or Missouri v Frye, ___ US ___, 132 SCt. 1399 (2012).[FN2] On this record I am not persuaded that the District Attorney would have [*6]consented to a sentence of even one day less than one year in jail, and I am firm that the Court would not have imposed that sentence sua sponte, without the District Attorney's consent. See Lafler v Cooper, supra and n.2 of this Opinion. See also People v Farrar, 52 NY2d 302 (1981); but see U.S. v Kwan, 407 F3d 1005 (9th Cir 2005). At the plea and at the sentence a sufficient record was made about the risks of deportation to have put defendant on notice under Padilla, as retroactively applied. Moreover, defendant himself must bear some responsibility to raise questions or concerns about his immigration status when such records were made in open Court in his presence.[FN3]

While defense counsel's advice to his client was not perfect, nor were his efforts ever specifically keyed on trying to get just one day less in sentence, taken in context and considering all the circumstances established in this record, I am satisfied his representation did not violate the defense attorney's obligation, as subsequently articulated in Padilla one year after this plea, nor did it violate his obligations under Lafler v Cooper, supra, or Missouri v Frye, supra. Substantially crediting the hearing testimony of both witnesses, as I do, I have concluded that there were advantages to this plea, and that the District Attorney in his discretion was and is unwilling to afford any additional consideration to this defendant, whom he deemed undeserving for sound reasons articulated at the hearing. Defendant must therefore bear the burden of the deportation risks about which he was warned. This motion is DENIED.

IT IS SO ORDERED.

ENTER,

_____________________________

J.S.C. Footnotes

Footnote 1: See Roselva Chaidez v United States, __US__, 2012 WL 1468539 (April 30, 2012), wherein the High Court agreed to decide the issue of the retroactivity of Padilla. See also People v Garcia, 29 Misc 3d 756 (Sup Ct, Kings County, 2010) and cases cited therein.

Footnote 2: As the prosecutor convincingly explains in his post-hearing memorandum, these new United States Supreme Court plea bargain decisions relied on by defendant are inapposite. In Frye, unlike here in Castillo, defense counsel failed to convey to his client a reduced plea bargain offer, and his client later pled guilty without any promise and received a much harsher sentence. In Lafler, defense counsel rendered ineffective assistance in advising his client to reject a reduced plea offer, resulting in a much greater sentence upon conviction after trial. Lafler was remanded for the state trial court to decide whether to impose the reduced sentence or not. The Frye case was also remanded to determine whether defendant could establish a reasonable probability that the prosecutor would not have enhanced the original offer and that the trial court would have accepted the plea offer and imposed the reduced sentence, conditions required by the Supreme Court for defendant to be entitled to relief. On this evidentiary record, and particularly in light of Mr. Ogiste's testimony, Castillo has failed to prove that there was a reasonable likelihood the sentence he now seeks would have been imposed.

Footnote 3:True, I consider it regrettable that the Court, faced with sentencing defendant on a plea taken before another Justice, was not presented with the option of imposing one day less in jail, although the Court had discretion, not exercised, of rejecting the plea agreement or referring the matter back to the Justice who took the plea. If there had been such discussion of one day less in jail at the sentence proceeding, it would have made it even clearer to all concerned what was at stake regarding deportation, and what was and was not achieved by this plea and sentence agreement. Such a discussion would also have obviated the need for this evidentiary hearing and probably the entire 440 motion.