People v Vallejo

[*1] People v Vallejo 2012 NY Slip Op 51131(U) Decided on June 20, 2012 Supreme Court, Kings County Ferdinand, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 20, 2012
Supreme Court, Kings County

The People of the State of New York, Plaintiff,

against

Arturo Vallejo, Defendant.



7797-2011



ADA Jonathan Laskin, Of Counsel

Charles J. Hynes, District Attorney, Kings County, for People

Juan Fiol and Sara Vendules, Esqs., Of Counsel

Brooklyn Defender Services, for Defendant

Jo Ann Ferdinand, J.

After the defendant's indictment for Criminal Possession of a Controlled Substance in the Fifth Degree (PL 220.06[5]), he appeared in the Brooklyn Treatment Court upon his request for a finding of exceptional circumstances and an order permitting him to participate in the Judicial Diversion Program for Certain Felony Offenders, pursuant to Criminal Procedure Law Article 216, without a plea of guilty. The defendant asserted that he was a viable candidate for diversion but as a lawful permanent resident of the U.S. could suffer the dire immigration consequences of detention and removal as a result of a plea of guilty, notwithstanding that the case would be dismissed and sealed were he to successfully complete the rehabilitative program. The People consented to the defendant's participation in diversion only upon the entry of a plea of guilty, contending that he is not entitled to a finding of exceptional circumstances because he has a prior conviction for a removable offense and the charge to which he would enter a plea of guilty in the instant case does not constitute an aggravated felony for immigration purposes, so deportation would not be mandatory.

The defendant is a 53 year old lawful permanent resident of the United States, having moved here from Ecuador in 1977, to join his mother, a U.S. citizen, with whom he resides. His four sisters are U.S. citizens and live in the New York area. He has two adult sons who are U.S. citizens. Over the years defendant has held numerous jobs including as a custodian for the City of New York, a job he held for over 20 years. In this case, he is alleged to have been in possession of seven small packets of cocaine at the time of his arrest. Ten years ago, the defendant was convicted of a misdemeanor drug crime and was sentenced to a term of probation, which he favorably completed. Following an evaluation of the defendant by a Case Manager of the Brooklyn Treatment Court (BTC), this Court finds that he is an eligible offender in need of substance abuse treatment for a cocaine dependency. This Court also finds he is an appropriate [*2]candidate for Judicial Diversion in that his drug use contributed to the crime for which he was arrested, and institutional confinement is not required for the safety of the community.

The Judicial Diversion statute requires the entry of a guilty plea prior to enrollment in treatment and provides that sentence be deferred while the defendant participates in the court mandated program (CPL § 216.05). BTC and the Kings County District Attorney's Drug Treatment Alternative-to-Prison (DTAP) program have diverted defendants arrested in Kings County into supervised treatment for over 15 years. Both utilize a post-plea, deferred sentencing model.[FN1] Treatment mandates can extend for many years and the diversion law recognizes that a defendant may require numerous opportunities to overcome drug addiction and successfully complete the court mandate. Guilty pleas provide the People with finality in such cases without need of a trial possibly years after the crime has occurred. For the defendant, a guilty plea demonstrates a willingness to accept responsibility for the criminal behavior and the recognition that avoiding a jail sentence is based entirely on his compliance. Because drug offenders frequently fail to comply with conditions to attend treatment, the coercion of a court mandate has proven to increase favorable outcomes for those who enroll in treatment for substance abuse.[FN2]

A conviction for a drug felony, like the one charged in this indictment, renders a lawful permanent resident subject to removal (see INA § 237([a][2][B][I]). A disposition in which a non-citizen enters a plea of guilty and the judge has ordered some form of punishment, penalty, or restraint on liberty, is a conviction under immigration law (see INA § 101[a][48]). Therefore, a plea to a removable offense with a deferred sentence for treatment under New York's Judicial Diversion Law is a conviction for immigration purposes. Lawful permanent residents, who participate in a diversion program that uses a post-plea deferred sentence model, stand convicted and remain removable even if the rehabilitation program is completed, the guilty plea is later vacated, and the case is dismissed (see Saleh v. Gonzalez, 495 F3d 17, 24-25, citing Pickering v. Gonzalez, 465 F3d 263, 266; Alim v. Gonzalez, 446 F3d 1239, 1249-1250; Pinho v. Gonzalez, 432 F3d 193, 195; Ramos v. Gonzalez, 414 F3d 800, 805-806; Cruz-Garza v. Ashcroft, 396 F3d 1125, 1129; Resendiz-Alcaraz v. U.S. Attorney Gen., 383 F3d 1262, 1268-1271). Thus, the very entry of a guilty plea and an agreement to enroll in drug treatment may result in the deportation of a non-citizen regardless of whether the ultimate resolution is a dismissal of the charges. Immigration Laws, which declare these diversion court graduates to be deportable despite the dismissal of all criminal charges pursuant to a rehabilitative statute, undermine the goal of treatment courts and prevent individuals from taking advantage of their new sober and law [*3]abiding lives in this country.

The defendant's misdemeanor conviction over 10 years ago could by itself result in his removal, however, in all these years no immigration detainer has been placed upon him. Accordingly, his removal due to the prior offense is neither imminent nor inevitable (see People v. Picca, 2012 NY Slip Op 04368, June 6, 2012 Appellate Division, Second Department). As a long time lawful permanent resident, the defendant is eligible for discretionary relief in the form of Cancellation of Removal (see INA § 240A[a]). Since he has lived in the United States continuously for 7 years before the crime and has been a lawful permanent resident for over 5 years, and because neither the prior conviction nor the felony charged in this indictment constitute aggravated felonies, an immigration judge has the discretion to consider the defendant's circumstances and grant relief from deportation. One basis for this relief is rehabilitation, which the defendant would only be able to demonstrate if he were permitted to enroll in and successfully complete diversion for treatment. However, as a result of a guilty plea entered herein, the defendant would be subject to mandatory detention pending a deportation determination (see INA § 236[c]). Thus, by entering a plea of guilty to a removable crime and agreeing to enroll in treatment, the defendant would stand "convicted" for immigration purposes and may be involuntarily prevented from fulfilling his mandate due to his detention by immigration authorities.

In what appears to be an effort to avoid harsh immigration consequences for those who do not require incarceration and whose charges stem from substance abuse or dependence, the NY Legislature carved out an exception to the plea requirement to be used in "exceptional circumstances." Exceptional circumstances exist where the very entry of a guilty plea "is likely to result in severe collateral consequences" regardless of the ultimate disposition of the case (CPL § 216.05[4][b]). Collateral consequences are those consequences that are peculiar to the individual and generally result from actions taken by agencies the court does not control (People v. Catu, 4 NY3d 242; People v. Ford, 86 NY2d 397; People v. Goss, 286 AD2d 180). The U.S. Supreme Court has recognized that deportation as a consequence of a criminal conviction is "a particularly severe penalty" (Padilla v. Kentucky, 130 S.Ct. 1473), "the equivalent of banishment and exile" (Delgadillo v. Carmichael, 332 US 388, 391). Thus, immigration consequences affecting a defendant must be considered by the Court in determining whether exceptional circumstances exist for those eligible for diversion. In view of the value of a guilty plea to both the People and a defendant's successful completion of treatment, a Court should only grant such exception when the circumstances are truly exceptional. However, if the guilty plea is likely to result in the most severe immigration consequence of removal of a lawful permanent resident, regardless of the ultimate disposition, exceptional circumstances may well exist.

The defendant came to the United States as a youth of 19 to join his mother and sisters, all U.S. citizens. He has two sons who are U.S. citizens. His family resides here and he has worked continuously to support himself in this country which has been his home for 35 years. Given that he has no prior felony convictions and the severe immigration consequences of detention and removal that would potentially result from the entry of a guilty plea, even if that

plea were later vacated and the charges dismissed, the defendant's motion for a finding of exceptional circumstances is granted. [*4]

This constitutes the decision and order of the Court.

JO ANN FERDINAND (A.S.C.J.) Footnotes

Footnote 1: DTAP used a deferred prosecution model until 1998 when it shifted to a deferred sentencing model. The one-year retention rate improved from 64% to 76% after this change. (Executive Summary, DTAP Twenty-First Annual Report)

Footnote 2: Miller, N. S., & Flaherty, J. A. (2000). Effectiveness of coerced addiction treatment (alternative consequences). A review of the clinical research. Journal of Substance Abuse Treatment, 18, 9-16.

Marlowe, Douglas B. (2009). Evidence-Based Senetncing for Drug Offenders: An Analysis of Prognostic Risks and Criminogenic Needs. Chapman Journal of Criminal Justice, 1, 167-201.