People v Roberts
Annotate this CaseDecided on September 7, 2012
Supreme Court, New York County
The People of the State of New York
against
Neil Roberts, Defendant
SCI 4489/89
For the People: ADA Daniel Haier, Office of the Special Narcotics Prosecutor, 80 Centre Street, New York, NY 10013, (212) 815-0192.
For Defendant: James A. Harris, Esq., M & J Harris Associates LLP, 799 Broadway, Suite 314, New York, NY 10003, (212) 228-7346
Richard M. Weinberg, J.
Defendant Neil Roberts and co-defendant Floyd Browne were originally charged with the B felonies of 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]. On May 23, 1989 defendant and his co-defendant both pled guilty, under a Superior Court Information, to the reduced charge of Attempted Criminal Sale of a Controlled Substance in the Third Degree (PL § 110/220.16[1]), a class C felony, in exchange for a promised sentence of five years probation. Both defendants had faced the prospect of a maximum jail sentence of 8 and 1/3 to 25 years if convicted of the B felony.
Because defendant now faces removal proceedings as a result of his 1989 controlled substance conviction, he has brought a motion 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 (2010), because his attorney failed to advise him of the immigration consequences of his plea and that he now faces deportation as a result of his attorney's ineffective assistance. He also alleges that he is not guilty of the charged crimes, despite having pled guilty. Defendant submitted a letter from his co-defendant in support of his assertion of innocence. A hearing on defendant's CPL §440 motion was ordered by Hon. Ellen Coin, who no longer sits in Criminal Term. This Court held that hearing on June 29, 2012. Defendant participated in the hearing via a [*2]video hookup from a detention center in Alabama where he is being held by the Immigration Service. Defendant testified in support of his motion. He also called his co-defendant, Floyd Browne, to testify on his behalf.
According to Court papers, the defendant and his co-defendant, Floyd Browne, were charged with selling crack cocaine to an undercover officer on the street at approximately 4:00 am. The complaint alleges that co-defendant Browne retrieved 3 vials of crack cocaine from a brown paper bag beneath a car across the street from where the sale was occurring. Browne handed the drugs to the undercover and Browne directed the undercover to give the money to the defendant Neil Roberts. The defendant, who was standing next to Mr. Browne, took the money from the undercover officer. This money, which had been pre-recorded, was subsequently recovered from the defendant. An additional seven vials of crack cocaine were recovered from the brown paper bag which was across the street from where the defendant and co-defendant had been standing.
At the hearing, the defendant testified that he had just returned home from work and was having a cigarette in front of his building before going into his apartment. The time was approximately 1:30am. The co-defendant, Floyd Browne, whom the defendant had just recently met, was across the street. Mr. Browne came over to the defendant and the two men were briefly engaged in conversation. Mr. Browne told the defendant that he was selling drugs. Almost immediately, Mr. Browne was approached by someone who asked Mr Browne to sell him some drugs. Mr Browne went back across the street, retrieved some drugs and sold them to that man. Mr. Browne then asked the defendant if he would walk to the store. The defendant refused because he was tired. Mr. Browne then asked the defendant if he could make change for him. The defendant agreed and Mr. Browne supposedly handed a $50 bill to him. The defendant then gave Mr. Browne some change. Almost immediately, the defendant and Mr. Browne were arrested. The defendant, according to the police, was in possession of pre-recorded buy money. According to the defendant, that buy money was in his possession not because he had taken the money from the undercover officer as part of the sale but because he had made change for co-defendant's $50 bill. The complaint alleges that the undercover purchased three vials and co-defendant admitted that the vials were sold for $5 each. According to this scenario, the undercover officer would have used a $50 bill to purchase three $5 vials.
Defendant's affirmation in his initial set of motion papers, filed April 14, 2011, contained a factual recitation of the event that is totally devoid of any mention of pre-recorded buy money having been recovered from the defendant. Under this version of events, the defendant was standing in front of his building with a drug-dealer friend. The friend was approached by a man seeking drugs. The friend sold drugs to this person and, moments later, both the defendant and his friend were arrested for selling drugs to an undercover officer.
The People responded to defendant's motion on June 21, 2011. In their response, the People alleged that pre-recorded buy money had been recovered from the defendant. [*3]
The defendant then filed another affirmation on July 20, 2011. It is in this affirmation that an explanation for the presence of pre-recorded buy money on the defendant first surfaces. According to this affirmation, the defendant was smoking a cigarette in front of his building at about 1:30 in the morning when the co-defendant, whom he knew from the neighborhood, came up to him and started a conversation. While they were talking, a man approached the co-defendant and asked him for some drugs. The co-defendant walked across the street and retrieved some drugs. When he returned to where the defendant and the purchaser were standing, the co-defendant threw the drugs onto the ground. He instructed the purchaser to throw his money onto the ground. The purchaser complied. The co-defendant stepped on the money, then picked it up and asked the defendant if he had change for a $50 bill. The defendant made change for the $50 bill and gave it to the co-defendant, who then gave the purchaser his change. The purchaser then walked away. About ten minutes later, both men were arrested.
At about this same time, the defendant contacted his co-defendant, Floyd Browne, and asked him to write a letter on his behalf concerning the events of that evening. In this handwritten letter Mr. Browne explained that he was "taking care of my business" when he saw the defendant walking towards the defendant's building. Mr. Brown "called him over and asked him did he have change for a 50 dollar bill." The defendant said "no". Mr. Browne then asked the defendant to follow him to a store. The defendant paused, then said "ok". As the defendant and Mr. Brown were walking toward the store, they were arrested.
After receiving this letter from Mr. Browne, the defendant composed and typed another letter, dated August 11, 2011, purporting to be from Floyd Browne and containing a different version of events. In this version, the defendant was smoking a cigarette in front of his building and the co-defendant was "just hanging out" in front of the building when the co-defendant was approached by a purchaser. The co-defendant left the purchaser in front of the building and went to retrieve the drugs. When he returned, the co-defendant asked the defendant if he could change a $50 bill. The defendant made change for the $50 bill. Shortly thereafter both the defendant and the co-defendant were arrested. Defendant mailed that letter to Mr. Browne and asked Mr. Browne to sign it in front of a notary. Mr. Browne signed the letter. The defendant then filed this fraudulent letter with the Court in support of his motion.
When the defendant was asked why he had been arrested in this case, he stated that he "was just at the wrong place at the wrong time." When defendant was asked about a 1997 conviction where he had pled guilty to selling marijuana, the defendant also denied his guilt and maintained that he was again "in the wrong place at the wrong time." In 2002, the defendant was convicted by guilty plea of possessing marijuana. He again denied his guilt and explained, "I don't know, trouble always follow(s) me."
Co-defendant Floyd Browne, an admitted former drug dealer who has at least three prior drug convictions, also testified at the hearing. He testified that he was across the street from the [*4]defendant's building when someone approached him to purchase drugs. Although Mr. Browne felt something was not right about the buyer, that he might be a cop, he none-the-less sold him some drugs. He then saw the defendant across the street. He called the defendant over and asked him to make change for a $50 bill so that he could unload what might have been pre-recorded buy money.
Interestingly, Mr. Brown repeatedly attributed the defendant's being arrested in this case to the defendant's being "in the wrong place at the wrong time".
After listening carefully to the testimony at the hearing, closely observing the demeanor of each witness, reviewing the motion papers, the hearing transcript and the exhibits, the Court finds neither the defendant nor Mr. Browne to be a credible witness. The Court has been presented with multiple, inconsistent versions of an event which have been unconvincingly honed by the defendant to support his motion.
However, defendant makes this motion solely on the ground of ineffective assistance of counsel under Padilla. He affirmatively has not made actual innocence a ground for this motion. He has offered evidence of actual innocence only to support a claim of prejudice under the second prong of the Strickland standard. Although the Court finds that defendant was not credible as to the actual events in question, the Court will credit his claim that his defense counsel did not advise him of the immigration consequences of his plea for purposes of 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 (1984); People v Mc Donald,1 NY3d 109 (2003). 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. Failure to establish either deficient performance or prejudice is fatal to defendant's motion.
As noted above, a defense counsel's performance is to be evaluated under the prevailing norms at the time of representation. Prior to Padilla, immigration consequences of a plea were considered to be collateral consequences and knowledge of these collateral consequences was not a necessary prerequisite to a knowing and voluntary guilty plea. People v Ford, 86 NY2d 397 (1995). Absent affirmative mis-advice, the failure of counsel to warn a defendant of the possibility of deportation did not constitute ineffective assistance. People v McDonald, 1 NY3d 109 (2003); United States v Couto, 311 F3d 179 (2nd Cir., 2002) Padilla, decided in 2010, makes clear that immigration consequences of a plea should no longer be considered collateral and, as a result, professional norms now require that a defense attorney advise his or her client about such consequences. This is a result of changes in immigration law, particularly two 1996 amendments, which now make deportation a virtual certainty following a conviction for a narcotics offense. [*5]This was not the case when defendant's plea was entered in 1989. Even assuming, aguendo, that Padilla should be applied retroactively, defendant's conviction is too remote in time to benefit from the evolving standard discussed in Padilla. See Bolivar Medina v USA, 2012 WL 742076, (SDNY, 2/21/12) ("The rule announced in Padilla cannot reach back further than the laws and conditions that, arguendo, dictated it.") Counsel's performance at the time of the plea comported with the then prevailing professional norms. See People v Ford, 86 NY2d 397 (1995).
Defendant was charged with two B felonies and, if convicted after trial, would have faced an indeterminate sentence of up to eight and a third to twenty five years imprisonment. This was a street- level buy and bust where, according to the People, the defendant was apprehended at the scene in possession of pre-recorded buy money and identified by the undercover officer within minutes of the sale. The People's case was strong and the likelihood of conviction was substantial. The defendant, who was represented by counsel, accepted a highly favorable, non-jail disposition, was fully allocuted by the Court and admitted his guilt prior to the entry of his plea. Defendant's assertion that, had he been made aware that he would be automatically deported as a result of his plea, he would have gone to trial and risked a lengthy jail sentence to avoid deportation, strains credulity and is legally inaccurate. Such a plea in 1989 would not have automatically resulted in deportation and, even if defendant had been sentenced to jail after trial, such an outcome would not have exempted him from deportation. Any prejudice the defendant now faces flows from changes in immigration law which occurred subsequent to his plea and not from the representation he received at the time of his plea..
Defendant has failed to establish by a preponderance of the evidence that his counsel's performance was deficient under the then prevailing norms. He has also failed to establish by a preponderance of the evidence that he was prejudiced by his counsel's performance. His motion to vacate judgment pursuant to CPL 440.10 on the ground of ineffective assistance of counsel is hereby denied.
The foregoing constitutes the Court's findings of fact, conclusions of law and reasons for its determination. This is the decision and order of the Court.
Dated: September 7, 2012___________________________
New York, New YorkRichard M. Weinberg
JSC
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