People v Mercedes

[*1] People v Mercedes 2012 NY Slip Op 52019(U) Decided on October 23, 2012 Supreme Court, New York County Conviser, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 23, 2012
Supreme Court, New York County

The People of the State of New York

against

Carlos Mercedes, Defendant.



06699/01



New York County District Attorney Cyrus R. Vance Jr. (Charles Kee and Stuart Silberg, of counsel) on behalf of the People;

Andrew L. Friedman, on behalf of the Defendant.

Daniel P. Conviser, J.

The Defendant moves here to vacate a guilty plea he entered in 2002 to the Class C felony of Criminal Possession of a Controlled Substance in the Fourth Degree because of his assertion that his attorney at the time did not advise him of the immigration consequences of his plea and that had he known those consequences he would not have pled guilty. See Padilla v. Kentucky, 130 S. Ct. 1473 (2010). This Court conducted a hearing on Defendant's motion at which the Defendant and his former attorney testified. For the reasons stated below, Defendant's motion is granted and his guilty plea is vacated.

STATEMENT OF FACTS

The Defendant is currently a 32 year-old lawful permanent resident of the United States who is facing mandatory deportation because of his 2002 conviction. Mr. Mercedes was arrested on July 25, 2001 and initially charged with Criminal Possession of a Controlled Substance in the Second and Third Degrees. The People and the Defendant have presented two very similar versions of the facts behind the Defendant's conviction.

According to the People's grand jury evidence (discussed infra), the police observed the Defendant while seated in the driver's seat of a car receive a small bag containing heroin from the car's front passenger, Lujan Tejada, and place the bag under the Defendant's car seat. The bag was recovered from under the seat and $5200 of currency was recovered from the car's trunk. The Defendant's version of these events is consistent in most respects. The only material difference is that, according to the Defendant, his passenger threw the bag of heroin on the center console of the car between the front seats when Mr. Tejada saw police approaching the vehicle. The Defendant now asserts that he did not know the bag contained narcotics until after he was arrested. Mr. Mercedes was not the owner of the car. This was the Defendant's first contact with the criminal justice system although his co-defendant had previous contacts including a Youthful Offender adjudication for a drug sale in 1995. [*2]

The Defendant and Mr. Tejada were represented by the same attorney, Rene Medina, who was hired by Mr. Tejada. Mr. Mercedes was released on his own recognizance at his arraignment. He was indicted for Criminal Possession of a Controlled Substance in the Third and Fourth Degrees. He entered his guilty plea on May 30, 2002 before Justice James Yates with a promised sentence of 5 years probation. During a standard plea allocution, Mr. Mercedes admitted that he and his co-defendant had jointly possessed more than 1/8 of an ounce of heroin.

Testimony of Carlos Mercedes

Mr. Mercedes was born in the Dominican Republic. He said he was very poor as a child, sometimes ate only once a day and slept in one room with his mother and sister. He moved to Puerto Rico in 1994 when he was 13 years old with his mother and sister as a permanent United States resident. He later came to New York and eventually reached the 12th grade here, but never graduated from high school. He said he came to the United States for a better life.

In 2002, his two year-old daughter lived in the United States. His daughter's mother had primary custody of the child but Mr. Mercedes spent a significant amount of time with her. At that time, his mother, sister, grandmother and stepfather were also in the United States as lawful residents. He described the very close relationships he had with his mother, sister and grandmother in 2002. These family members are now United States citizens and Mr. Mercedes also has multiple additional family members in the United States. He has one aunt in the Dominican Republic. Mr. Mercedes said that he did not own any property in the Dominican Republic in 2002.

At the time of his arrest, he had two or three jobs, one at Burger King and one at Pay Less. He said that his co-defendant, Mr.Tejada, was a nephew of his stepfather. Mr. Mercedes said that he had previously been detained once before by the police when he was with Mr. Tejada driving back with him from Maryland where Mr. Tejada's brother used to live. The two were stopped when the police believed they smelled marijuana in the car but were released when that proved to be unfounded. There was no evidence presented at the hearing that Mr. Mercedes had any criminal justice system contacts other than those associated with his instant conviction.

On the date of the arrest, Mr. Mercedes had been at a family reunion\barbeque arranged by his stepfather in a park in the Bronx. This occurred on a Wednesday afternoon, but Mr. Mercedes said it was common for his family to hold such events on Wednesdays. Mr. Tejada asked the Defendant to drive him downtown to pick up Mr. Tejada's girlfriend in Mr. Tejada's car. Mr. Tejada said he did not want to drive himself because his driver's license had expired. They went to an address on Madison Avenue, Mr. Tejada called his girlfriend to come downstairs and the two car occupants were then directed to move from the spot they were at in front of a firehouse by a fireman. They circled the block and then returned to the same spot. Mr. Tejada then noticed police officers approaching the car and took a bag from his pocket and threw it inside the car. The bag landed on the console between the driver's side of the car and the passenger side, closer to Mr. Mercedes. The bag was smaller than one finger on a hand and was later determined to contain heroin. Mr. Tejada and the Defendant were both taken into custody and while in custody, Mr. Tejada urged the Defendant to plead guilty to possessing the narcotics.

Mr. Mercedes said a search of his person did not locate any drugs, that he did not own the car and that he did not know there had been narcotics in the vehicle prior to the drugs being [*3]thrown. The Defendant was released after his arraignment and Mr. Medina became his lawyer. He agreed that the 24 hours he spent in jail prior to his arraignment were not pleasant and that he did not want to go to jail. He did not pay for Mr. Medina's services. At a court appearance, Mr. Medina told the Defendant that the People were offering a disposition of 5 years probation, that there were a "lot of chances to win" at trial but that if he lost, he would likely receive a sentence of 1-3 or 2-6 years incarceration.[FN1] Mr. Medina also said that Mr. Mercedes could get a Shock Incarceration program which would result in his release in 6 to 8 months. Mr. Mercedes said he pled guilty because "I didn't want to get away from my daughter and my family".[FN2]

He agreed that he had lied to the judge during his plea allocution when he admitted to committing the crime and said he did so in order to avoid going to jail and being separated from his family. Mr. Mercedes asserted that Mr. Tejada had pressured him to plead guilty. He acknowledged, however, that both he and Mr. Tejada pled guilty on the same day and that Mr. Tejada's plea occurred before his own. Mr. Mercedes said that neither Mr. Medina nor the Court ever talked to him about the immigration consequences of his guilty plea. He asserted that had he known about those consequences, he would "never" have pled guilty. Explaining, he said that "my daughter was very little. She was the light of my eyes and all my family is here."[FN3] He also said he would not have pled guilty because he had a lot of chances to win the case and because he would have preferred to serve 6 or 7 months, a year or even years in prison rather than "a whole life".[FN4] He said that he knew nothing about Santo Domingo [in the Dominican Republic], had no one there and was currently being confined and subject to mandatory deportation to that country.Mr. Mercedes acknowledged that because he was not incarcerated during the pendency of his criminal case, he had ample opportunity to speak with Mr. Medina. Mr. Mercedes said he never told Mr. Medina that Mr. Mercedes was from the Dominican Republic but assumed Mr. Medina was aware of that fact. The Defendant said that he was not aware at the time that immigration enforcement had been increased after September 11, 2001. He was aware that there were people who were deported from the United States, but assumed such deportations occurred only for persons without "papers" rather than for legal residents like himself. He assumed that any consequences arising from his criminal conviction would end once his probation was over.

Testimony of Rene Medina

Rene Medina represented the Defendant in the instant criminal proceeding. Mr. Medina said that he had never practiced immigration law and had only a perfunctory knowledge of the field in 2001-2002. He said he did not have any recollection of his representation of the Defendant prior to the instant motion being brought but that since that time he had come to a [*4]very vague recollection of the matter. He said that in 2001-2002 it was not his practice to discuss immigration matters with clients prior to guilty pleas and that if asked about the matter by a client he would suggest the client contact an immigration attorney. He said that he had begun informing clients about immigration matters after the Padilla decision.

Mr. Medina said that at the time of the Defendant's plea, immigration issues would arise only with respect to incarceratory sentences, since with respect to non-incarceratory sentences, clients were not in peril of deportation. Mr. Medina said that his practice in 2001-2002 with respect to clients facing an incarceratory sentence, depending on a client's nationality, might have been to advise the client to consult an immigration attorney prior to entering into a guilty plea. With respect to clients facing a non-incarceratory disposition, his practice was to not mention the issue. This was because of his understanding that immigration authorities would not become involved in the Defendant's life with respect to such pleas.

Grand Jury Testimony of Sergeant Christopher J. McCormack

The parties agreed to introduce the grand jury testimony of Sergeant Christopher J. McCormack who testified in support of the Defendant's indictment in 2001. He testified that while on duty on 25, 2001, he saw a car occupied by the Defendant in the driver's seat and Lujan Tejada in the passenger seat parked illegally in front of a fire hydrant at approximately 3:00 P.M. on Madison Avenue in New York County. Mr. Tejada told the police it was his girlfriend's car. Sargent McCormack asked the driver for his license, registration and insurance card. He observed Lujan Tejada hand Mr. Mercedes a clear plastic bag which appeared to contain narcotics. He observed Carlos Mercedes place the clear plastic bag under his seat and recovered a bag containing heroin from that location. He said that the amount of heroin he recovered was slightly smaller than a golf ball, which he said was inconsistent with personal use but consistent with the sale of narcotics. $5200 of United States currency was recovered from the car trunk.CONCLUSIONS OF LAW

The Padilla Decision

In Padilla, the United States Supreme Court held that a criminal defense attorney who does not advise a non-citizen client entering into a plea bargain of the immigration consequences of that plea provides representation which falls below an "objective standard of reasonableness" pursuant to the first prong of the two-part ineffective assistance of counsel test outlined in Strickland v. Washington, 466 US 668, 688; 694 (1984), rehearing denied, 467 US 1267. A defendant who meets that first prong of the Strickland test, the Court held, and also demonstrates that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different" may have a previously entered guilty plea vacated. Padilla, 130 S. Ct. at 1482, quoting Strickland, 466 US at 694.

The Court explicitly held that it was not only affirmative misadvice, but the failure to provide affirmative advice which would violate the first Strickland prong. Where the deportation consequences of a plea were clear, the Court held, as in the drug case at issue in Padilla, an attorney was obligated to affirmatively inform a client about those clear consequences. On the other hand, the Court held, where the deportation consequences of a plea were not clear, an attorney was obligated only to inform a client about the possible immigration consequences of a plea without necessarily providing specific advice about what would happen if he pled guilty. [*5]

The Padilla Court noted that the categories of non-citizens subject to mandatory deportation had dramatically increased over the past 90 years and that such mandatory deportation is now "virtually inevitable for a vast number of non-citizens convicted of crimes". 130 S. Ct. at 1478. In tracing the history of this country's immigration laws, the Court pointed out that although the Immigration and Nationality Act of 1917 for the first time authorized the deportation of large categories of non-citizens convicted of crimes, the law also contained a provision allowing sentencing judges to effectively prevent such deportations in individual cases by recommending against them. However, such judicial discretion was first circumscribed in 1952 and then eliminated in 1990. The authority of the United States Attorney General to waive deportation was also eliminated for all but a small category of deportable offenses in 1996. Id. at 1480. It was the sum of these changes which convinced the Padilla Court that "deportation is an integral part — indeed, sometimes the most important part — of the penalty that may be imposed on non-citizen defendants who plead guilty to specified crimes". Id.

Retroactivity of Padilla

In the wake of Padilla, New York State trial and appellate term courts have struggled with the question of whether the decision should be retroactively applied to guilty pleas that are no longer subject to direct review, as is the case here. Compare, e.g., People v. Nunez, 30 Misc 3d 55 (App Term 2010) (Padilla applied a well-established old rule and thus should be applied retroactively); with People v. Santana, 36 Misc 3d 1201 (A) (Bronx County Supreme Court, 2012 (Duffy, J.) (Padilla announced a new rule of criminal procedure and thus should not be applied retroactively). The retroactivity issue has also divided the federal courts and is now pending before the United States Supreme Court. See Chaidez v. United States, 132 S. Ct. 2101.

The First Department, however, recently held that Padilla should be applied retroactively, at least for pleas taken during or after 1996. People v. Baret, 2012 NY SlipOp 06550 (1st Dept October 2, 2012). The Third Department also recently applied Padilla retroactively to a 2008 plea although that Court did not explicitly address the retroactivity issue. People v. Oouch, 2012 NY SlipOp 05566 (3rd Dept July 12, 2012). In light of the Baret decision this Court must apply Padilla retroactively here.

The Problem Addressed by Padilla

The necessity for the Padilla decision and the instant motion arises, in this Court's view, from an extraordinarily punitive federal deportation policy. According to a 2008 report from Human Rights Watch, between 1997 and 2007, 897,099 non-citizens were deported from the United States after serving criminal sentences.[FN5] Twenty percent of those persons were legally in the country and had often lived here for decades. 77 percent of those otherwise legal residents deported because of their criminal convictions had committed non-violent offenses including misdemeanors.

The 2011 federal fiscal year saw the largest number of deportations in the history of the Immigration and Customs Enforcement Agency (ICE), 396,906, 55% of whom had criminal convictions. The deportation of persons with criminal convictions has increased 89% since 2008 alone. More than 80,000 of those deported in 2011 were convicted of drug-related or driving [*6]while impaired crimes.[FN6] Non-citizens convicted of a long list of crimes, including non-violent crimes are now subject to mandatory deportation with no opportunity for waivers by courts or administrative agencies. The Human Rights Watch report estimated that at least one million family members had been separated from their spouses or children by virtue of these deportations by 2007. The wrenching impact on those families was obviously on the minds of the majority justices in Padilla. See 130 S. Ct. at 1486.

Lawful immigration, of course, has been the lifeblood of our nation since its founding. Persons who are deported because of criminal convictions have obviously committed crimes in this country. But current law provides no ability for judges or administrative agencies to consider the circumstances surrounding those crimes and whether those circumstances call for the extreme remedy of banishing otherwise legal residents from their homes, lives and families. In the face of this extreme policy, the United States Supreme Court has devised a remedy for persons who did not understand and adequately consider the profound immigration consequences of their guilty pleas. But given the limited role which the courts have in our system of government, that remedy is necessarily both inadequate and problematic. It is inadequate because it will ultimately serve to correct the profound injustices faced by only a small percentage of deportees. It is problematic because it calls upon courts to make decisions which, as discussed infra, will inevitably be infused with subjective retrospective judgments which may be inimical to the impartial administration of justice. The granting of Padilla claims, in many cases, will also likely result in a significant impairment in the ability of the state to effectively prosecute crimes.

Defendants making Padilla claims will often start out out with two giant strikes against their credibility. Both of those strikes are fully evident here. First, a person facing banishment is someone who would be expected to say or do anything to avoid that sanction.[FN7] Most defendants making Padilla claims are profoundly interested witnesses. Second, Padilla defendants in [*7]almost all cases will have previously pled guilty.[FN8] This means that the defendant previously told a judge he was guilty of the crime which is the subject of his motion. A Padilla defendant need not assert his actual innocence to be successful, although the Padilla courtpointed out that "it is often quite difficult for petitioners who have acknowledged their guilt to satisfy Strickland's prejudice prong". 130 S. Ct. at 1485, n.12. But to successfully assert a Padilla claim a defendant will generally be required to testify at an evidentiary hearing. He will then be subject to cross-examination. A prosecutor may then be able to ask him if he in fact committed the crime he pled guilty to. If his answer is yes, that admission can be used as evidence against him at a new trial. That evidence may then be sufficient along with other proof to result in conviction. It may obviate the whole point of the Padilla motion.

On the other hand, if a defendant denies he committed the crime, as the Defendant did here, that makes him a liar. It not only makes him a liar, however. It demonstrates, by the Defendant's own words, that he lied in court to a judge on the very subject he now asks the court to rely on the veracity of his testimony to establish. That lie, along with his self-interest in avoiding deportation, will then in combination inevitably serve to shred much of the reliance a court might otherwise be disposed to have with respect to a defendant's testimony. Mr. Mercedes, in the Court's view, did not manifest a demeanor during his testimony which was indicative of dishonesty. Nor, despite an effective cross-examination by the assistant district attorney, was he caught up in any obvious lies. But he is both desperate to avoid deportation and is either lying now or previously lied to a judge about his guilt.

For those reasons, the Court did not believe it was appropriate to place any significant reliance on the veracity of Mr. Mercedes's testimony concerning whether he was guilty of the instant crime or whether he would not have pled guilty had he been informed about that plea's immigration consequences. His testimony, however, also concerned areas which were not contested by the People or were corroborated by other evidence. This Court has reached its conclusion by relying upon those facts and then determining whether, as the Padilla Court instructed, his prior guilty plea would have been "rational under the circumstances". Padilla, 130 S. Ct. At 1485 (citation omitted). The Padilla rule places a great deal of reliance on the objective facts underlying the Defendant's circumstances at the time of a guilty plea. Indeed, at least one federal circuit court has held that the Padilla prejudice test is purely an objective one. See Pilla v. U.S., 688 F3d 368, 373(6th Cir 2012) (the Padilla prejudice "test is objective, not subjective").

There is another plain fact which must be acknowledged in these cases. While the People are obviously entitled to continue prosecuting defendants who assert successful Padilla claims, effective prosecutions in many cases may be difficult or impossible given the passage of time. In this case 11 years have passed since the Defendant's arrest. Even if all of the evidence with respect to that alleged crime is still available, prosecuting an 11 year old case presents formidable obstacles. The memories of witnesses may be dulled or non-existent. Even if such memories and evidence are fully intact, moreover, a defendant can always seek to create reasonable doubt about his guilt by arguing that a witness may not have accurately recalled what he professed to see or hear a long time ago. Jurors will justifiably wonder why a case has been delayed for so [*8]long and despite instructions to the contrary may blame prosecutors, defendants or both for the delay, injecting further potential prejudice into the trial. All of these daunting barriers, moreover, arise in these cases through absolutely no fault of the People. Indeed, of all of players in these cases, it will often be only the People who are completely blameless. Yet it will also often be only the People, and more importantly the interest in effective law enforcement which they represent, which will suffer when Padilla claims are successfully made.[FN9]

Court assessments of Padilla claims are unusually problematic, in this Court's view, additionally because of the difficulty of making the retrospective judgments which courts are required to make under the second prong of the Strickland test. Courts in these cases must decide whether, if a defendant had known facts about his immigration status 10 or 15 years ago which he did not know at the time, he would have made a different decision with respect to his plea. Memories, of course, dull over time. But it is even more difficult to assess how one's emotions and judgments might have been affected a decade or more ago by information a person did not possess. Indeed, for defendants who are mature adults now but were in their late teens or early 20's at the time of a plea, as is the case here, compelling research over the past decade has definitively demonstrated that the defendant's brain will have been functionally different at the time he pled guilty. Those developmental changes particularly apply to risk-taking behavior.[FN10] Finally, even assuming that such a retrospective judgment by a defendant has been accurately made and then credibly communicated (a highly dubious proposition) it must then pass through the filter of a judge who will have little knowledge of who the defendant was at the time he pled guilty.

The notion that the prejudice inquiry can be appropriately made on a completely objective basis, on the other hand, in this Court's view, is fallacious because Padilla prejudice inquiries are uniquely ill-suited to such purely objective assessments as well. It is one thing to consider what a hypothetical reasonable person would do when confronted with particular set of known discrete facts, as in an assessment of whether actions taken by a defendant which were purportedly in self-defense were justified, for example. It is quite another to believe that weighing the uncertain risk of an uncertain period of incarceration against the prospect of being separated from one's home and family at some unknowable future time can be objectively assessed by considering how a hypothetical reasonable person might make such a choice. In the end, the reliance on ostensible objectivity may end up replacing the unknowable assessment of what a defendant [*9]might have done with a subjective assessment of what the judge might have done under the same conditions.

All of these problematic issues, this Court submits, are not the fault of courts, prosecutors or defense attorneys. They arise because of an inflexible federal deportation policy. They reflect the constricted and strained efforts of fair minded jurists and prosecutors to cope with the devastation that policy has wrought.[FN11]

Analysis of the Instant Motion

In the Court's view, the evidence in this case indicated that Mr. Mercedes was not informed of the immigration consequences of his plea. The Defendant testified that this was true. But Mr. Medina also said that it would not have been his practice to inform a client facing a non-incarceratory sentence that he was subject to deportation unless he was specifically asked about it. The Defendant's assertion that he was not aware and did not ask Mr. Medina about the immigration consequences of his plea is also completely plausible. Mr. Mercedes at the time of his plea was a 22 year-old man who had not graduated high school and had no previous contacts with the criminal justice system. There was nothing incredible about his assertion that he was not aware at the time of his plea of federal laws governing the deportation of non-citizens convicted of crimes. Thus, in the Court's view, the first prong of the Strickland standard as interpreted by Padilla was met in this case.

In People v. Picca, 97 AD3d 170 (2d Dept June 6, 2012) the Court outlined the considerations which may guide a court's decision about whether a defendant could have rationally opted not to plead guilty had the defendant been aware of the immigration consequences of his plea: The People's evidence against a defendant, potential sentences, and the effect of any prior convictions are but factors in this calculus. For a citizen defendant, the strength of the People's evidence and the potential sentence in the event of conviction likely bear the greatest weight in a decision of whether to accept a plea offer. However, removal from the United States is a unique consequence of a criminal conviction and . . . . a particularly severe penalty. Especially for the alien who has acquired his residence here, the stakes are . . high and momentous. . . . preserving a non-citizen's right to remain in the United States may be more important to him or her than any potential jail sentence. 97 AD3d at 183 (multiple citations and quotations omitted).

The Picca court also held that trial courts should pay particular attention to the circumstances surrounding a defendant's desire to remain in the United States. For example, the Court noted, it would be irrational for a recently arrived immigrant with no family ties to reject a favorable plea bargain in the face of overwhelming evidence and the potential for a lengthy prison term. On the other hand, strong ties to the United States along with a weak case in which the Defendant faced less exposure would argue that the decision to reject a plea would be rational. [*10]

There is an additional significant issue in this case which should be analyzed: what would accurate advice about the deportation consequences of the Defendant's plea have been in 2002? It is clear that Mr. Mercedes was subject to mandatory deportation at the time. But Mr. Medina also testified that if asked, he would have informed Mr. Mercedes that his probation sentence would not have resulted in his immediate deportation. Mr. Medina asserted that it was his understanding that a defendant in Mr. Mercedes' position would have been able to fly under the radar screen of immigration authorities in 2002 and so would have been able to remain in the United States, notwithstanding a guilty plea. Thus, at least according to Mr. Medina, accurate advice to Mr. Mercedes with respect to the immigration consequences of his plea in 2002 would not have been that such a plea would result in his immediate detention and expulsion.As best as the Court can surmise, accurate advice to Mr. Mercedes about the immigration consequences of his plea in 2002 would have been that while Mr. Mercedes was subject to deportation at any time, he was unlikely to be deported unless some additional circumstance occurred which triggered the interest of immigration authorities. Mr. Mercedes was not detained for many years after his plea, as Mr. Medina accurately predicted. Indeed, according to Mr. Medina, the chance that Mr. Mercedes would have been deported because of his criminal conviction would have dramatically increased if he lost at trial and was sentenced to prison rather than pled guilty and received probation. Moreover, in this Court's view, the practical consequences of a plea must be judged as of the time the plea was entered. Those consequences cannot be assessed by making a forward looking analysis of how federal immigration enforcement practices may have changed in future years.

On the other hand, the Padilla decision does not seem to have been written with such practical considerations in mind. The Defendant in Padilla had a final judgment entered against him on October 4, 2002 which included a five year prison term. That was the same year the Defendant's plea was entered here.[FN12] According to the Padilla majority, however, federal law at the time made deportation "nearly an automatic result" for crimes like that committed by Mr. Mercedes. 130 S. Ct. at 1481; 1483. Perhaps in part because the defendant in Padilla was incarcerated, the decision did not address the common sense notion that a decision about whether to plead guilty will obviously hinge not only on the letter of federal immigration law but the practical likelihood that a defendant will be deported.[FN13]

The letter of the law also appears to have been a more important consideration than such [*11]practical realities for the Court in Picca.[FN14] There, the Defendant was subject to deportation after taking a DTAP (Drug Treatment Alternative to Prison) plea in 2001, when, at the time of the plea, he would not be subject to incarceration if he complied with the plea's conditions. He was later sentenced to prison for violating those plea requirements and then detained for deportation. The People argued that it would not have been rational for the Defendant to have rejected the DTAP plea and proceed to trial because, inter alia, "he would have been more likely to avoid ICE's attention by taking a DTAP plea without prison time than if he were convicted after trial and sentenced to prison". 97 AD3d at 186. The Court gave short shrift to that practical argument, noting that the important consideration was that the Defendant "would still have been subject to mandatory removal" .

In this case, in the Court's view, the consideration of all of these relevant factors argues in favor of granting the Defendant's motion. Mr. Mercedes was certainly facing a serious charge in this case, a Class B felony. He was also facing a mandatory prison term had he been convicted. As a first offender, however, it is likely that he would have received a 6 month Shock Incarceration program or an indeterminate 1-3 or 2-6 year prison sentence had he been convicted after a trial in New York County. Moreover, had he received an indeterminate sentence, he would have been a prime candidate for work-release. On the other hand, had he been deported, Mr. Mercedes would likely have been barred for life from legally re-entering the United States.[FN15]

What the Court has been able to glean about the facts of this case, moreover, indicate that it would have been an eminently triable one. The Defendant was found in a car he did not own along with a relatively modest amount of heroin located under his seat which, according to the police, the Defendant was handed by Mr. Tejada when the police approached his vehicle. There was apparently nothing other than the brief observations of the police at the time of the Defendant's arrest which directly tied the Defendant to those drugs. As far as the Court is aware, the Defendant did not make an inculpatory statement, was not found with drugs on his person, did not have a large amount of currency in his possession and was not connected to the narcotics trade in any known way apart from his presence in the car and his alleged momentary possession of the bag of heroin. Since he had no criminal record, Mr. Mercedes could easily have testified at his trial and asserted his innocence. This Court would not characterize the evidence against the Defendant as "weak". A police officer was apparently prepared to testify that he saw the Defendant in physical possession of heroin. However, this was certainly a case where a conviction was far from assured.

Most significantly, the Defendant at the time of his plea had every reason to prefer rolling [*12]the dice with the ultimate chance that he might face a modest prison term rather than facing the prospect of being permanently banished from the United States. He had first come to this country at the age of 13 and had an established residence and life here. He had no connection to the Dominican Republic. His life here was certainly far preferable to the much more limited opportunities he would have in the Dominican Republic. Most importantly, the Defendant had very strong family ties here at the time of his conviction.

Mr. Mercedes testified credibly, in this Court's view, about the great love he has for his daughter and to the close connections he had with his daughter, mother and sister at the time of his conviction, ties which apparently continue to this day. It would make perfect sense for a 22 year-old man in Mr. Mercedes's position to opt to go to trial in a case he had some chance of winning and risk a modest prison term rather than face potentially permanent separation from everything he held dear. The "quintessential situation" addressed by the Padilla case is one where exile or multiple decades of banishment would be worse than a sentence to prison for a more limited number of years. Picca, 97 AD3d at 185. That quintessential situation clearly exists here. For all of these reasons, Defendant's motion is granted and the Defendant's plea and conviction are vacated.

October 23, 2012

Daniel Conviser, A.J.S.C.

Footnotes

Footnote 1: August 23, 2012 Hearing Transcript, p. 16, ll. 13-14.

Footnote 2: Id., p. 17, ll. 7-8.

Footnote 3: Id., p. 18, ll. 15-18.

Footnote 4: Id. , p. 19, l. 2.

Footnote 5: See "Forced Apart (by the Numbers) Non-Citizens Deported Mostly for Nonviolent Offenses". Human Rights Watch, April, 2009.

Footnote 6: See "FY 2011: ICE announces year-end removal numbers, highlights focus on key priorities including threats to public safety and national security". News release from ICE, October 11, 2011, Washington D.C.

Footnote 7: As the Padilla Court recognized, deportation is the "equivalent of banishment or exile". 130 S. Ct. at 1486 (quotation omitted). Banishment is a punishment which dates back to ancient Greece, Rome and other early societies. In ancient times, it could place an offender in physical danger because he could not live within a protected community and shame the family who remained behind. See http://legal-dictionary.the freedictionary.com/banishment (available on the web). Today, the banishment effected by deportation may sever deportees from virtually every aspect of their lives. It may return deportees to countries they may have had contact with only as children, thrusting them into societies they have little capacity to live in. As the Supreme Court recognized in Padilla, such outcomes can often be far more punitive than the sanctions imposed for the commission of the crime itself.

Footnote 8: The only possible exception would be an Alford plea in which the Defendant enters a plea without admitting that he has committed the crime. Such pleas, however, are extremely rare.

Footnote 9: In this Court's view, a far better way of handling successful Padilla claims would be to keep the defendant's conviction intact, but simply not subject the defendant to deportation. This Court, however, is obviously not empowered to order such a remedy.

Footnote 10: See e.g., "Teenage Brains", Nationalgeographic.com, David Dobbs, 2011 at 4,, (discussing brain scan research indicating that between age 12 and 25, "brains undergo a massive reorganization" resulting in the ability to better balance things like impulses, desires, goals and self-interest ); "The Emergence of Consequential Thought: evidence from neuroscience", Abigail A. Baird and Jonathan A. Fugelsang, The Royal Society, November 26, 2004,(adolescents are more likely than adults to engage in risk-taking behavior because they are unable to foresee the possible consequences of their actions).

Footnote 11: The New York County district attorney's office evaluates Padilla claims and consents to vacate such pleas in some cases. The People did not consent to grant the motion in this case, however.

Footnote 12: See Commenwealth of Kentucky v. Padilla, 253 SW3d 482 (Kentucky Supreme Court, 2008), rev'd by Padilla, supra.

Footnote 13: The Padilla majority's recounting of the history of immigration advice in criminal cases is also, in this Court's view, not consonant with practical realities in another respect: the majority's view that courts should presume that lawyers have generally advised clients of the deportation consequences of guilty pleas for at least the past 15 years because professional norms have required such advice. 130 S. Ct. at 1485. In reality, as Mr. Medina testified and as this Court understands from other information, there is no reason to believe that attorneys in this state routinely advised clients of the deportation consequences of guilty pleas a decade or more ago.

Footnote 14: The Picca decision reversed a ruling by the trial court to deny Defendant's Padilla claim without holding an evidentiary hearing and remanded the case so that such a hearing could be held.

Footnote 15: The People make the valid point that lifetime deportation does not necessarily mean a defendant cannot unlawfully re-enter the United States. Mr. Mercedes, however, has apparently lived his life in a law-abiding manner, with the exception of the serious criminal conviction at issue here. So it could be surmised that the prospect of trying to re-enter the United States as an illegal alien would be much less attractive than continuing to live the lawful life he had enjoyed.