People v Abdullah
Annotate this CaseDecided on August 3, 2012
District Court of Nassau County, First District
The People of the State of New York, Plaintiff,
against
Mohiuddin M. Abdullah, Defendant.
2003NA009501
Kathleen M. Rice, District Attorney, Nassau County, Attorney for People, 262 Old Country Road, Mineola, New York 11501 516-571-3800, Michaelangelo Matera, Esq., Attorney for Defendant, 560 Broadhollow Road, Suite 303, Melville, New York 11747, 516-741-6700.
Helen Voutsinas, J.
The following papers have been considered by the Court
on this motion: submitted May 29, 2012
________________________________________________________________________
Papers Numbered
________________________________________________________________________
Notice of Motion, Affirmation & Exhibits Annexed...........................1 - 2
Affirmation in Opposition....................................................................3
Reply Affirmation................................................................................4
The defendant, Mohiuddin Abdullah, moves for an order, pursuant to CPLR 2221(d), seeking to reargue the previous decision of the Court dated April 28, 2012, or in the alternative, for an order granting him leave to renew his arguments pursuant to CPLR 2221(e). The People oppose the motion and the defendant submits a reply.
The defendant was charged under docket number 2003NA009501, with one count of endangering the welfare of a child (Penal Law §260.10[1]). Under docket number 2003NA012717, the defendant was charged with one count of sexual abuse in the third degree (Penal Law § 130.55). On September 26, 2003, the defendant pled guilty, pursuant to a reduced plea. The defendant pled guilty to one count of attempted endangering the welfare of a child (Penal Law § 110.00/260.10[1]), a B Misdemeanor reduced from the endangering the welfare of a child and one count of harassment in the second degree (Penal Law § 240.26[1]), a violation reduced from the sexual abuse in the third degree in satisfaction of both dockets. The defendant was sentenced on December 10, 2003 to two concurrent terms of fifteen days imprisonment. It is noted that due to a clerical error in the commitment paperwork the defendant was re-sentenced on December 22, 2003. Again, he [*2]was sentenced to two concurrent terms of imprisonment of fifteen days. The defendant did not appeal from his judgment of conviction.
The defendant, Mohiuddin Abdullah, moved pursuant to CPL §§440.10(b) and 440.20 for an order vacating the plea and judgments entered against him as well as setting aside the sentence rendered on December 10, 2003 on the ground that such plea was obtained in violation of due process under the Sixth and Fourteenth Amendments to the United States Constitution or, in the alternative, for a hearing to determine whether such verdict and sentence should be vacated on the grounds that the defendant received ineffective assistance of counsel, stating he failed to advise him of the possible immigration consequences that his plea would have. The defendant also sought an order, pursuant to CPL §440.30(5) directing the People to produce the defendant at any hearing to be conducted for the purpose of determining the merits of this motion and the requested relief. The People filed opposition to the defendant's motion.
On April 10, 2012, the Court denied the defendant's motion to vacate his plea.
I. MOTION TO REARGUE
In the instant motion, the defendant argues that the Court misapprehended certain facts and law set forth in the defendant's motion. Specifically, the defendant alleges that the Court erred in its ruling.
The purpose of a motion to reargue is to afford a party an opportunity to establish that the Court overlooked or misapprehended the relevant facts or misapplied a controlling rule of law (CPLR 2221[d]). The defendant's motion to reargue is denied. This Court has determined it did not misapprehend any relevant facts or misapply any controlling principles of law.
II. MOTION TO RENEW
The defendant also moves this court for a motion to renew. CPLR §2221(e)(2) reads, in relevant part: a motion to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination ...". Pursuant to CPLR §2221(e)(3), such a motion "shall contain reasonable justification for the failure to present such facts on the prior motion".
Counsel in support of the motion to renew offers a Notice of Hearing dated March 1, 2012. This Court will permit counsel to renew his application. However, with the additional proof submitted in support of the defendant's motion to renew the Court does not [*3]find that the defendant has met the standard required to grant his application.
The defendant submits the Notice of Hearing in support of his motion, setting forth two convictions for crimes involving moral turpitude as grounds for deportation.The notice states that the defendant is not a citizen or national of the United States and has been convicted of the crimes of attempted endangering the welfare of a child, the victim being a minor on December 22, 2003 and sexual abuse in the third degree on December 14, 2006.
As stated in Kentucky v. Padilla, 130 S. Ct. 1473, changes to immigration laws have dramatically raised the stakes of a noncitizen's criminal conviction. This Court agrees, that the importance of accurate legal advice for noncitizens accused of crimes has never been more important.
This Court found in its original decision, that based on the credible evidence submitted in support of the motion the defendant failed to satisfy the requirements under Strickland v. Washington, 466 US 668 (1984).
Under Strickland, we first must determine whether counsel's representation "fell below an objective standard of reasonableness." Padilla at 1482, citing Strickland, 466 U.S. at 688. If the immigration consequences are "succinct, clear and explicit," defense counsel is likewise required to provide substantive advice regarding the immigration consequences. If the law is "not succinct and straightforward" regarding the immigration consequences of a particular case the attorney must provide his client with a general advisement.
In its original decision, the Court did not grant the defendant's motion based on his failure to satisfy the burden of proof required in support of the motion. Although, the transcripts are silent, there is no affirmation from the attorney regarding the underlying case attesting to the deficient nature or his pre-plea advice to the defendant. Nor is there any explanation from the defendant as to why it would be impossible to secure such an affirmation or present some other evidence to substantiate his claim.
Furthermore, this case is distinguishable from the facts in Padilla. In Padilla, the defendant's immigration consequences were succinct, clear and explicit. The defendant in Padilla was given incorrect advice.Contrary to Padilla, in the instant case, the defendant has not provided sufficient proof that the attorney's representation fell below an objective standard of reasonableness. Defense counsel argues that the defendant's prior attorney failed to advise him of his immigration consequences. However, it is evident that this was defendant's first arrest and conviction. Defense counsel assumes that the defendant's plea to the reduced charge triggered immigration consequences. However, the defendant is being deported for convictions resulting from two crimes of moral turpitude.The [*4]defendant's plea on September 26, 2003 did not trigger removal of the defendant. It was the second plea that triggered the deportation proceeding.
Although, defense counsel argues that the Court must vacate the plea because it takes two convictions to trigger deportation, one of which is this plea, this Court disagrees. Standing in the shoes of the defendant and defense counsel on September 26, 2003, it is questionable whether he was subject to the deportation as a result of taking the plea.It is evident that the duty of the counsel was limited, in that, a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. See, Strickland, at 1473. In this case, the defendant would not suffer deportation unless he was rearrested and pled to a crime of moral turpitude for a second time. It would be unreasonable to expect an attorney to advise the defendant of future immigration consequences if he was rearrested on other charges.
Despite the lack of proof, it is evident from the Court record that the defendant was aware of some future deportation consequences because he stated he was afraid of being deported.
Based on the foregoing, this Court finds that the defendant failed to satisfy the first prong under Strickland.
This Court also finds that the defendant has failed to satisfy the second prong under Strickland. The defendant has to establish that there is a reasonable probability that if properly advised of the immigration consequences, he would not have pled guilty and instead would have insisted on going to trial. The second prong which is also known as the "prejudice" prong requires that the defendant show that "there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Id. at 694). That is, but for the plea the defendant would not have been deported.
Again, the Court found that defendant did not show that counsel's performance was deficient and fell below an objective standard of reasonableness. The defendant was offered a reduced plea from endangering the welfare of a child (Penal Law §260.10(1), an A misdemeanor, to an attempted endangering of a child, (Penal Law §240.26(1), a B misdemeanor. He also received a reduced plea of harassment in the second degree, a violation from the charge of sexual abuse (Penal Law §130.55), an B misdemeanor. The defendant received a fifteen day sentence.
The defendant was also provided an opportunity to withdraw his plea after the judge decided to impose a jail sentence and the defendant refused. This Court finds that the [*5]defendant has failed to convince this Court that a decision to reject the plea bargain was rational under the circumstances, in light of the fact that this was defendant's first conviction and contact with the criminal justice system. The defendant was facing a potential guilty charge of sexual abuse in the third degree and endangering the welfare of the child, which carries a sentence of one year. Being that this was defendant's first conviction, and in light of the fact that the defendant would not have suffered any immigration consequences by entering a plea of guilty to this one conviction, this Court finds that the defendant failed to meet the second prong of Strickland.
Accordingly, the defendant's motion is denied.
This constitutes the Decision and Order of the court.
So Ordered:
Hon. Helen Voutsinas
District Court Judge
Dated: August 3, 2012
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
