People v Alguheen

[*1] People v Alguheen 2017 NY Slip Op 50440(U) Decided on April 6, 2017 City Court Of Mount Vernon, Westchester County Seiden, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 6, 2017
City Court of Mount Vernon, Westchester County

The People of the State of New York,

against

Basheer Alguheen and Omran Yahya, Defendants.



14-2502



For the People:

Westchester County District Attorney

Mount Vernon branch

For Defendant Yahya:

Kenneth K. Frenkel, Esq.

11 Broadway, Suite 1168

New York, New York 10004
Adam Seiden, J.

On October 6, 2015, Defendant Yahya entered a plea of guilty to the charge of Failure to Report/Pay Tobacco Tax (Tax Law § 1814) under docket No. 14-2509. The plea was entered in satisfaction of the charges of Criminal Sale of Marihuana in the Fourth Degree (P.L. § 221.14) and Failure to Report/Pay Tobacco Tax (Tax Law § 1814) charged under Docket #14-2502. On January 12, 2016, defendant was sentenced to three years probation.

Defendant Yahya now seeks to vacate the judgment pursuant to C.P.L. § 440.10. on the ground that the plea was obtained in violation of his right to the effective assistance of counsel. He has not appealed from the judgment.

The People oppose the motion.

A judgment of conviction is presumed valid, and a defendant moving to vacate his judgment has the burden of coming forward with sworn allegations sufficient to create an issue of fact (see C.P.L. § 440.30(4)(b),(d)(i),(ii)). On this motion, defendant argues that he is a citizen of Yemen. He maintains that at the time he entered his guilty plea, he was not aware that entering such a plea would have negative immigration consequences, put him at risk for deportation, or have an impact on his status as a resident alien. He argues that he was not able to fully participate in the proceedings due to a language barrier because his command of the English language is limited. He states that he speaks Arabic and was not able to fully comprehend what [*2]the interpreter, his lawyer and Judges told him at the time he took the plea. He contends that the plea allocution demonstrates that the he was confused as to whether his guilty plea could lead to deportation or have negative immigration consequences. He argues that his defense counsel, Linda Morris, was silent during the exchange regarding the plea and deportation. He further argues that Ms. Morris makes no mention on the record of having discussed immigration consequences with her client. Defendant also argues that the Court did not inquire as to whether counsel had apprised defendant of potential immigration consequences of his guilty plea, and further, counsel gave no indication on the record that she had done so. Defendant argues that had he understood the interpreter, he would not have plead guilty and would have insisted on a hearing on a motion to suppress.

Defendant argues that he has valid defenses to the allegations, and neither accusatory establishes that he was in possession of any contraband. Defendant maintains that the complaint is facially insufficient as it fails to allege that he was a specific actor or how he was in possession of any illegal items. Defendant argues that he was not in the store on June 24, 2014 and was not a worker in the store until July. Thus he contends that he could not be the alleged unnamed defendant that either sold synthetic marihuana or untaxed cigarettes on June 24, 2014. He also affirms that he does not own or rent the apartment above the store at 3 East 4th Street nor is it his home or residence or place of arrest on July 7, 2014.

In opposition, the People argue that defendant's claims that his attorney failed to inform him of the possible negative immigration consequences are belied by the court record, in that defendant clearly told the court that he understood English, the court warned defendant of possible immigration consequences and defendant signed the misdemeanor waiver of rights form in open court. In signing the form, defendant acknowledged that he was waiving his right to appeal, that he had discussed the waiver with his attorney, and that he was pleading guilty because he was in fact guilty. After entering a guilty plea, defendant reported to the Department of Probation as part of pre-sentence investigation. He was interviewed by a probation officer regarding his family, employment and background information. The People argue that there is no mention in the pre-sentence report or any interpreter being needed during the interview. The People argue that on January 12, 2016, the defendant was present with his attorney and the Arabic interpreter, Issac Ovadiah. He reconfirmed his plea of guilty and told the court he was satisfied with his attorney's representation. The People argue that since the defendant's sentence to three years probation, he has met with his probation officer, Giacoma Anselmo, on multiple occasions and has not used an interpreter to communicate with her. The People argue that on July 26, 2016 they mailed defendant a letter requesting that he provide the "Notice to Appear" from the Department of Homeland Security. The People argue that this form notice is served on an alien when he or she is subject to deportation proceedings and would state the factual basis for deportation and the section of immigration law invoked. The People argue that, to date, the defendant has failed to provide them with a "Notice to Appear".

Pursuant to Padilla v Kentucky, 559 US 356, 130 S Ct. 1473 (2010), a non-citizen defendant's attorney must correctly advise him about the potential immigration consequences of pleading guilty. Where deportation consequences are unclear or uncertain, only a general caution regarding deportation consequences is necessary (see People v Marino-Affaitati, 88 AD3d 742, 743 (2d Dept 2011)).Throughout the plea allocution, it was clear to the court that the defendant [*3]understood English, the nature of the proceedings and consequences of a guilty plea. During the allocution, District Attorney Thomas asked the defendant, "Have you seen this Misdemeanor Conviction Waiver if Rights Form?" To which the defendant replied Yes. He then asked defendant if he had any questions about the form, to which Mr. Yahya responded No. Defendant Yahya acknowledged that it was his signature on the form and that he understood by entering a guilty plea he was waiving his right to a jury trial. Mr. Thomas then asked the defendants "and do each of you understand that if you are not a citizen of the United States, this plea of guilty may result in your deportation and exclusion from the United States?", to which the defendant responded Yes. The interpreter then began interpreting what Mr. Thomas stated and the interpreter advised the court that Defendant Yahya appeared to be confused by his translation because they were from different countries and had a different accent than Defendant Yahya. The Court then asked the defendant if he understood English, to which the defendant responded Yes. The Court found that it was not necessary for the interpreter to repeat what he was saying. Thus, the Court asked the interpreter to stop interpreting because it was clear the Court that Defendant Yahya understood what Assistant District Attorney Thomas had just stated in English with respect to the possibility of deportation. The court informed the defendant that if he had any questions to let the court know. Defendant Yahya then went on to acknowledge that he discussed the negotiated Waiver of Right to Appeal with his attorney and that he was pleading guilty because he was in fact guilty. At the end of the plea allocution Assistant District Attorney Thomas asked defendant if he had any questions for him, the Court or his attorney to which defendant replied No. He further acknowledged that the understood what just happened and that he would be sentenced to three years probation pending a Presentence Report from the Department of Probation. The plea was reconfirmed on January 12, 2016 and the defendant indicated that he was satisfied with the job of his attorney Linda Morris. Based on the foregoing, the Court finds that a general caution was provided to defendant and as such, his motion should be denied (People v Navas, 40 Misc 3d 1240(A) (Sup Ct. Queens Co. 2013)).

Defendant also failed to establish that he was prejudiced by the alleged ineffective performance of his counsel. Defendant's claim of ineffective assistance of counsel must be analyzed by the Court pursuant to the procedural requirements of C.P.L. § 440 and the substantive guidelines set forth in Strickland v. Washington, 466 U.S. 668 (1984). Here, the defendant provided neither an affidavit from his attorney nor explained his efforts to obtain one. Since defendant's attorney is the only individual from whom evidence substantiating defendant's claim can be adduced, and no affidavit from his attorney has been provided in support of defendant's motion, defendant has failed to meet his burden of establishing that his counsel's performance was ineffective. Defendant's motion is based solely upon unsupported self-serving statements that he was not advised by his counsel of possible deportation.

Assuming arguendo that defendant satisfied his burden of asserting sufficient factual allegations, which he did not, his ineffective assistance of counsel claim is nevertheless without merit. To prevail on an ineffective assistance of counsel claim, a defendant must be able to show both that the counsel's performance fell below an objective standard of reasonableness and prejudiced the defendant. Strickland v. Washington, 466 U.S. 668 (1984). In Padilla, the Court held that in the context of an ineffective assistance of counsel claim regarding a defendant's guilty plea, when the deportation consequence of a defendant's guilty plea is truly clear, counsel [*4]has a duty to give correct advice. When the deportation consequences of a particular plea are unclear or uncertain because the law is not succinct and straightforward, a counsel's duty is only to advise a non-citizen that the pending criminal charges may carry the risk of adverse immigration consequences. Padilla, 130 S. Ct. at 1483.

On docket number 14-2509, the defendant pled guilty to Failure to Report/Pay Tobacco Tax (Tax Law §1814(b)). The Court finds that there is no relevant immigration statute in the instant matter that is succinct, clear and explicit like the applicable immigration statute in Padilla. As such, in the case at bar, determining whether a defendant's plea to Failure to Report/Pay Tobacco Tax (Tax Law § 1814 (b)) would render a defendant deportable would require defense counsel to conduct a fair amount of legal research into various, often convoluted, sections of the United States Code in order to discern whether Failure to Report/Pay Tobacco Tax as defined by the NY Tax Law is a deportable offense under federal immigration law. As conceded by the majority in Padilla, "immigration law can be complex" and "it is a legal specialty of its own". As such, the Court determines that in the instant matter, the duty of defense counsel was limited to advising the defendant that his guilty plea may carry an adverse immigration consequence.

The Court finds that the defendant was adequately apprised of the possible immigration consequence of his plea. The defendant was represented at all times by competent counsel, and presumptively as per routine Court procedure, stated at the plea allocution that he was pleading guilty because he was in fact guilty and that he had placed his signature on a Misdemeanor Waiver of Rights Form. He stated that he discussed the form with his counsel. The form, states in pertinent part, "6. I have discussed this matter with my attorney and have had enough time to talk with my attorney and make this decision. . . . 14. Do you understand that if you are not a citizen of the United States, this plea of guilty may result in your deportation and exclusion from the United States?" The Court finds the defendant's contrary allegations in his affidavit unavailing since defendant's papers are devoid of any evidence to support them.

Based upon the foregoing, defendant has not provided sufficient allegations which would entitle him to vacate the judgment under C.P.L. § 440.10. The defendant's motion to vacate the judgment is therefore denied.

Defendant also argues that the complaints are facially insufficient as they fail to allege how Defendant Yahya possessed any illegal contraband. He further argues that he was not present in the store on June 24th and the home alleged to be where the untaxed cigarettes were recovered in July 7th is not his home. The sufficiency of an information must be determined by a reading of the face of the instrument itself, together with any supporting depositions accompanying it (People v. Casey, 95 NY2d 354, 361 (2000); People v. Grabinski, 189 Misc 2d 307 (App. Term, 2nd Dept. 2001)). Pursuant to C.P.L. §100.40(1) a misdemeanor information is sufficient on its face when it (1) conforms to the form and content requirements prescribed in C.P.L. § 100.15, (2) contains factual allegations which provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the instrument, and (3) non-hearsay allegations of the factual part of the information and/or any supporting depositions establish, if true, every element of the offense charged and the defendant's commission thereof. Reasonable cause to believe that a person has committed an offense exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary judgment and experience that [*5]it is reasonably likely that such offense was committed and that such person committed it. C.P.L. §70.10(2).

The information under Docket # 14-2502 charges that at about June 24, 2014 at approximately 19:10 HRS, the defendant(s) did knowingly and unlawfully possess in his hand one plastic ziplock bag containing a green leafy substance that your deponent recognized as synthetic marihuana. The defendant then sold said marihuana to an undercover officer for $5.00 in US currency. An additional sixteen bags of synthetic marihuana was found in the above location when a search warrant was executed on July 7, 2014. The accusatory further states defendants, "while aiding, abetting, and acting in concert with one another did knowingly and unlawfully possess in their place of business two-hundred and forty-four cartons of cigarettes that did not bear the required New York State tax stamps for purpose of selling them."

The information under Docket #14-2509 charges that at about July 7, 2014 at approximately 4:03 pm, defendants, "while aiding, abetting, and acting in concert with one another did knowingly and unlawfully possess in their home five hundred one boxes of cigarettes that did not bear the required New York State tax stamps for purpose of selling them. The boxes had stamps from Virginia on them."

Tax Law § 1814(d) provides:

Any person, other than an agent licensed by the commissioner, who possesses or transports for the purpose of sale any unstamped or unlawfully stamped packages of cigarettes subject to tax imposed by section four hundred seventy-one of this chapter, or who sells or offers for sale unstamped or unlawfully stamped packages of cigarettes in violation of the provisions of article twenty of this chapter shall be guilty of a misdemeanor.

Penal Law § 221.40 provides:

A person is guilty of criminal sale of marihuana in the fourth degree when he knowingly and unlawfully sells marihuana except as provided in section 221.325 of this article.

Based on the foregoing, the Court finds that the accusatory instrument is facially sufficient. Contrary to the defendant's argument, the statute does not limit possession to an owner of a business or home. The remaining arguments advanced by defendant do not render the information insufficient but were factual issues defendant could have disputed before a trier of fact had he decided to proceed with trial and not plead guilty. Therefore, the motion to dismiss for facial insufficiency is denied.

Motion denied.

This constitutes the Decision and Order of this Court.

Dated: April 6, 2017

Mount Vernon, New York

HON. ADAM SEIDEN

Associate City Judge of Mount Vernon