People v Samms

[*1] People v Samms 2012 NY Slip Op 51949(U) Decided on October 10, 2012 Criminal Court Of The City Of New York, Bronx County Scherzer, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 10, 2012
Criminal Court of the City of New York, Bronx County

The People of the State of New York, Respondent.

against

Ingrid Samms, Defendant.



98X016117



For the People:

Stanley Kaplan and Hannah E.C. Moore

Robert T. Johnson

District Attorney, Bronx County

For Defendant:

Sharifa Milena Nasser

De Leon & Associates, PLLC

Ann E. Scherzer, J.

Defendant Ingrid Samms [defendant] moves pursuant to Criminal Procedure Law [CPL] § 440.10(3)(c) to vacate a judgment dated April 7, 1998, convicting her of disorderly conduct in violation of Penal Law [P.L.] § 240.20.

Upon review of defendant's motion papers, the People's response, and the court file, this Court hereby orders defendant's motion in the interest of justice GRANTED.

I.FACTUAL BACKGROUND

Defendant is a forty-two-year-old native of Jamaica who arrived to the United States on a visitor's visa.[FN1] See Samms Aff. at ¶ 7. On or about January 29, 1998, defendant was arrested for attempting to leave a store without paying for two shirts.[FN2] In a criminal court complaint filed by the Bronx District Attorney's office, defendant was charged with petit larceny in violation of P.L § 155.25 and Criminal possession of stolen property in the 5th degree in violation of P.L. § 165.40. See Complaint at Def.'s Ex. A.

Defendant was arraigned in Bronx Criminal Court on April 7, 1998, and was represented by counsel from Legal Aid Society [LAS]. At her arraignment, defendant pled guilty to the added [*2]charge of P.L. § 240.20, disorderly conduct, a designated violation.[FN3] See Def.'s Ex. B; see

also Def.'s Aff. at ¶ 6(D). She was sentenced to pay a fine of $50.00 and did so on or about June 8, 1998. See Def.'s Ex. B. Defendant has no other history of arrests, either in the United States or Jamaica. See Def.'s Aff. at ¶¶ 6 (C) & (K).

For the past seven years, defendant has been working as a receptionist at a doctor's office, and in 2006 she partially completed a medical billing course. See Samms Aff. at ¶ 8 [sometime in 2006, defendant enrolled at Lehman College for medical billing courses but did not complete that course of study because she underwent back surgery. Id]. On December 20, 2010, defendant married Ron Hansen, a United States citizen. Id. at ¶ 7. She has three children, two with Mr. Hansen.[FN4] Mr. Hansen is unemployed, and in addition to supporting him and her children, defendant is the main caretaker of her mother-in-law who suffers from Alzheimer's disease. Id. at ¶ 9. Defendant lives with her husband, children, and mother-in-law in Bronx, NY.

In 2011, defendant hired an immigration lawyer to help her file for Lawful Permanent Resident [LPR] status.[FN5] She seeks to vacate the disorderly conduct conviction to remove any obstacles to completing her immigration application.

II.COUNSELS' RESPECTIVE ARGUMENTS

A.Defendant's Claims

Defendant contends that her judgment should be vacated in the interest of justice because her application for LPR status could be jeopardized by her record of a disorderly conduct conviction. She states that her removal to Jamaica would result in tremendous hardship for her family who are heavily dependent on her both emotionally and financially, and points out that this violation conviction marks the only time that she has been in trouble with the law. According to defendant, these factors justify a dismissal for good cause in the interest of justice.

Defendant also claims that she received ineffective assistance of counsel at her April 7, 1998 court appearance because her lawyer did not properly inform her about the potential immigration consequences of entering a guilty plea.

B.The People's Claims

The People do not counter any of the factual allegations presented by defendant in support of her request for an interest of justice dismissal. Instead, they respond only to defendant's motion for vacatur based on ineffective assistance of counsel. The People oppose that motion contending that defendant's papers are insufficient because she failed to provide the correct name of the LAS lawyer who represented her at arraignment, and did not properly identify the immigration status for which she is currently applying. [LPR status, and not [*3]citizenship].[FN6] See Opp. Memo at p. 4.

Lastly, the People posit that they will be prejudiced by the granting of this motion because of defendant's fourteen-year wait to take further action on her case.

III.DEFENDANT'S CONVICTION SHOULD BE VACATED IN THE INTEREST OFJUSTICE

A.Factors To Consider Under The "Interest of Justice" Ground

Under CPL §440.10(3)(c), the court may vacate a judgment of conviction in the interest of justice, upon motion demonstrating good cause. The following ten factors warrant consideration in determining whether good cause has been shown:[FN7] -

the seriousness and circumstances of the offense -

the extent of harm caused by the offense -

the evidence of guilt, whether admissible or inadmissible at trial -

the history, character and condition of the defendant -

any exceptionally serious misconduct of law enforcement in the investigation, arrest and

prosecution of the defendant -

the purpose and effect of imposing on the defendant a sentence authorized for the offense -

the impact of a dismissal upon the confidence of the public in the criminal justice system -

the impact of a dismissal on the safety or welfare of the community -

the attitude of the complainant or victim with respect to the motion -

other relevant facts showing that a conviction judgment would serve no useful purpose

An analysis of defendant's case based on these factors overwhelmingly supports her motion to vacate the conviction. The offense for which defendant was convicted - disorderly conduct - is a generic violation, not a crime. It is routinely offered to first-arrest defendants charged with a broad array of penal law criminal infractions. A plea to disorderly conduct does not require that the defendant admit criminal activity, nor does it result in a new criminal record for a first-time offender or an addition to an existing record. The specific offense involved here caused no lasting harm as defendant was stopped before she walked out of the store with [*4]merchandise that did not belong to her. She was sentenced to pay a fine and did so; thus, she has been punished for her transgression. Moreover, since the record of conviction was sealed one year after its entry, its vacatur could have no practical impact on the public's confidence in the criminal justice system, or pose a threat to the safety or welfare of the community.

Most significantly, defendant's history since this isolated event has been stellar: she has lived a law-abiding life, works to support her family and cares for several dependent relatives. The People have offered no evidence disputing the good moral character depicted in her affidavit. Indeed, her motive in seeking to vacate this conviction is to ensure that she be able to stay in the United States to care for her young children, one of whom is disabled. See Samms Aff. at ¶ 7.

While this Court can conceive of no useful purpose to retaining an obsolete violation conviction on defendant's record, the potentially adverse consequence of doing so is severe, as it could interfere with defendant's efforts to obtain LPR status.

Under current U.S. immigration law, to become any LPR, one must file Form I-485 with U.S. Citizenship and Immigration Services [USCIS]. Part 3.C. of Form I-485 asks if the applicant has ever knowingly committed any crime of moral turpitude without being arrested or has ever been arrested, convicted, or fined for breaking or violating any law, both in or outside the U.S.[FN8] Under the Immigration and Nationality Act [INA], a non-citizen who is convicted of a crime involving moral turpitude is inadmissible.[FN9] See INA § 212(a)(2)(A)(i); 8 USC § 1182(a)(2)(A)(i). Fraud and theft convictions are likely to lead to inadmissibility.[FN10] And, while the INA does not give a concrete definition of "crimes involving moral turpitude," petit larceny has historically been considered such a crime. Caesar v. Ashcroft, 355 F. Supp. 2d 693, 703 (S.D.NY 2005), citing Henry v. Ashcroft, 175 F. Supp. 2d 688, 690 (S.D.N.Y.2001).

Here, defendant pled guilty to disorderly conduct, P.L. § 240.20, but the underlying arrest was for petit larceny, P.L. § 155.25, and for criminal possession of stolen property in the fifth degree, P.L. § 165.40. It is these underlying charges that may pique immigration authorities' interest, and ultimately lead to denial of defendant's application.[FN11] In Re: José Luis Manquera-Castro, 2005 WL 698417 (BIA 2005); In Re: Ricardo Arreeigue-Alvarado, 2004 WL 2374327 (BIA 2004).

Upon consideration of all the circumstances, this Court finds that the potentially negative impact of keeping the disorderly conduct conviction on defendant's record far outweighs any possible benefit to its retention.[FN12]

Accordingly, in the interest of justice, defendant's vacatur of her judgment of conviction [*5]is granted. Having granted the motion on that basis, this Court declines to review defendant's claim of ineffective assistance of counsel which is, in any event not ripe, as defendant has no pending immigration court matters.

IV.CONCLUSION

In sum, this Court finds that the interests of justice are best served as a matter of discretion by granting defendant's motion.

WHEREFORE Defendant's motion is GRANTED on the merits.

This constitutes the Decision and Order of this Court.

Dated:October 10, 2012___________________________________

Bronx, New YorkHon. Ann E. Scherzer

Judge of the Criminal Court Footnotes

Footnote 1: Defendant overstayed her visitor's visa; she therefore is not deemed an immigrant for immigration law purposes.

Footnote 2: The store is located at 2160 Bartow Avenue, Bronx, NY 10475.

Footnote 3: Pursuant to CPL § 160.55, noncriminal offenses are sealed by operation of law. Generally, a disorderly conduct violation is sealed one year after conviction.

Footnote 4: Defendant's youngest child [a minor son] has serious health issues caused by improper development of his head. See Samms Aff. at ¶ 7.

Footnote 5: This is also commonly known as a "green card."

Footnote 6: Timothy Clancy was the LAS attorney who appeared on defendant's behalf. Mr. Dennis R. Murphy was the Attorney-In-Charge of the Criminal Defense Division at LAS at the time of defendant's court appearances. See Opp. Memo at p. 3; see also Opp. at Ex. 3.

Footnote 7: See CPL § 210.40(1); see also People v. Clayton, 41 AD2d 204, 208 (App Div, 2d Dept 1973) (applying the "interest of justice" test lies in the value judgment and discretion of the court). While the above factors are laid out in the form of a Clayton motion by a defendant, "in the interest of justice" can nevertheless be adopted as an all-purpose ground for motions to vacate indictments and convictions, so long as compelling, credible considerations are proven. Such is the case with defendant.

Footnote 8: See .

Footnote 9: Meaning, a non-citizen is excluded from admission to the United States.

Footnote 10: See Immigration Procedures Handbook 2011-2012, Fragomen, Jr., Austin T. et al. (Vol. 2, p. 760).

Footnote 11: This scenario can be likened to various job applications which ask whether an applicant has ever been arrested and/or convicted of a crime, excluding traffic infractions.

Footnote 12: This Court rejects the People's claim that they may be unduly prejudiced by vacatur of the conviction because fourteen years have passed without defendant seeking further action until now. See Opp. Memo at p. 12. There is no time limit for making § 440.10 motions. People v. Ping Cheung, 186 Misc 2d 507, 509 (NY Sup Ct 2000), and, in any event, because defendant pled to a violation, there is no lasting impact.