People v Bangoura

[*1] People v Bangoura 2017 NY Slip Op 51178(U) Decided on September 19, 2017 Supreme Court, Bronx County Barrett, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 19, 2017
Supreme Court, Bronx County

The People of the State of New York, Plaintiff,

against

Mohamed Bangoura, Defendant.



3013/2015



Assistant Attorney General Priscilla Steward, Office of the Attorney General of the State of New York, 212-416-8737

Attorney for the Defendant, Matthew Borowski, 716-330-1503
Steven L. Barrett, J.

On October 28, 2015, as a result of a long-term investigation conducted by the New York State Organized Crime Task Force that utilized electronic surveillance, physical surveillance, confidential informants, pole cameras, and search warrants, defendant and thirteen co-defendants were indicted for the theft of numerous luxury automobiles from car rental agencies or the public streets that were either shipped or to be shipped to various countries in Africa. Based upon his participation in the scheme, defendant was charged with twelve counts of criminal possession of stolen property in the second degree, one count of conspiracy in the fourth degree and related counts. On June 13, 2016, defendant pled guilty to one count of criminal possession of stolen property in the second degree, and, on August 9, 2016, defendant was sentenced to an indeterminate term of imprisonment of one to three years as promised.

On February 1, 2017, the United States Department of Homeland Security, Bureau of Immigration and Customs Enforcement, issued defendant, a native of Guinea who lawfully entered the United States in 2009 as a non-immigrant visitor for business and whose status was adjusted in 2014 to that of an alien lawfully admitted for permanent residence, a Notice to Appear (NTA) for removal proceedings.[FN1] The NTA alleges defendant is subject to removal from the United States based upon the above conviction, which qualifies as both an aggravated felony relating to a theft offense and a crime involving moral turpitude committed within five years after admission for which a sentence of one year or longer may be imposed.

Defendant now seeks to have this Court vacate the instant judgment of conviction claiming that he received ineffective assistance of counsel because counsel at his plea, Bob Kramer, Esq., and counsel at his sentencing, Bruce Klein, Esq., failed to inform him and [*2]misadvised him of the immigration consequences of his plea.[FN2] Specifically, defendant claims that prior to pleading guilty Mr. Kramer failed to inform him that he would be deported based upon his plea, and, in fact, affirmatively told him that his plea would have "no immigration consequences" and that he "shouldn't have any problems" regarding his immigration status as a result of the plea. (See Affirmation of Matthew Borowski, Esq. at ¶¶6-8, Affirmation of Defendant at ¶¶8, 11-12.) In addition, though defendant admits that prior to sentencing, Mr. Klein informed him that he could face deportation based upon his conviction for an aggravated felony, he claims that Mr. Klein misadvised him that he could not move to withdraw his guilty plea, that it was "too late to change anything", and that he had no other option but to move forward with sentencing. (See Affirmation of Matthew Borowski, Esq. at ¶¶9, 11, Affirmation of Defendant at ¶¶18-19.) Moreover, defendant claims that had he known that he faced mandatory deportation as a result of his plea to criminal possession of stolen property in the second degree he would have attempted to negotiate an immigration-safe plea, or, failing that, he would have taken the case to trial and would have had a viable defense based on his claim that he lacked knowledge that the vehicles he had loaded onto ships destined for Africa were stolen. (See Affirmation of Matthew Borowski, Esq. at ¶¶15, Affirmation of Defendant at ¶¶9, 23, Defendant's Memorandum of Law at p. 7.) For the reasons stated below, defendant's claims are unavailing and therefore his motion is denied.

Initially, defendant's claims are denied on the ground that they are completely unsubstantiated. All that defendant submits that purports to corroborate his affidavit are the plea and sentencing minutes, which, as will be detailed below, fail to do so. Conspicuously absent from defendant's motion papers are affidavits from Mr. Kramer and Mr. Klein detailing the advice they gave to defendant regarding the immigration consequences of his plea.[FN3] Absent any documentary evidence or sworn allegations supporting his claim, defendant's motion must fail. See CPL §440.30(4)(b) & (d); People v. Medina, 129 AD3d 504 (1st Dept. 2015).

At the plea proceeding, defendant appeared with Mr. Kramer and utilized an official French interpreter. Defendant acknowledged that he wished to plead guilty to one count of criminal possession of stolen property in the second degree in full satisfaction of the pending charges (T:3) Defendant then acknowledged that he is not a citizen of the United States (T:3). The Court then explicitly stated that as a result of his felony conviction defendant could be deported and that the felony conviction could have "dire consequences" with respect to his [*3]immigration status (T: 3-4). Defendant stated that he understood and then hesitated going forward with the plea (T:4). After an off-the-record conversation with Mr. Kramer, defendant stated that he was willing to accept the immigration consequences and to plead guilty (T:4-5).[FN4] The Court then reiterated to defendant regarding the immigration consequences of his plea that he "could hope for the best, but plan for the worst" (T: 5). The Court then proceeded with the allocution and defendant acknowledged the trial rights he would be waiving by pleading guilty, including his right to appeal and he also acknowledged his guilt of the offense (T: 9-16). Due to questions raised by defendant during the course of the allocution regarding defendant's knowledge that the vehicles at issue were stolen, the Court had defendant acknowledge, on at least four separate occasions, that he knowingly possessed stolen property (T: 7, 8, 9-10, 15). Finally, at the end of the allocution, defendant again affirmed that he was fully aware of and conscious of the consequences of his plea (T:16).

It is thus plainly evident from the transcript of the plea that the Court fulfilled its responsibilities to warn defendant of the immigration consequences of his guilty plea. The transcript, however, is silent with regard to whether plea counsel fulfilled his concomitant duty to so inform defendant. In this regard, the People have submitted in support of their motion in opposition an affidavit from Mr Kramer, which contradicts defendant's self-serving affidavit. Initially, the court notes that Mr. Kramer is well known to the Court as he has appeared before the Court and tried numerous cases before the Court over the past several decades. He has always been a forthright, passionate and zealous advocate on behalf of his clients and the Court has been given no reason to doubt that he is being anything but completely candid and truthful with regard to this matter. In his affidavit, Mr. Kramer admits that he did not intially seek out an immigration lawyer, but instead relied upon advice given to him by Assistant Attorney Gerneral Kligman and her supervisor, and based upon that advice, he initially erroneously informed defendant that a guilty plea to a felony would not affect his immigration status because he was a political asylee. (See Kramer affidavit at ¶4 attached as Exhibit B to People's Affirmation in Opposition.) However, Mr. Kramer further avers that he told defendant, prior to defendant's entry of his plea, that he was not sure if Ms Kligman was correct and that there was no guarantee that his guilty plea would not result in deportation. (See Kramer affidivit at ¶4.) Mr. Kramer also sheds light on the off-the-record conversation that occurred during the course of the plea proceeding after the Court warned defendant of the potential for deportation. Mr. Kramer avers that he did not contradict the Court's warning and that he reiterated to defendant that he could not guarantee that he would not be deported due to his asylee status as a result of a guilty plea to criminal possession of stolen property, notwithstanding the prosecutor's belief to the contrary. (See Kramer affidivit at ¶5.) Mr. Kramer then told defendant that he would request an adjournment so that he could speak to an immigration attorney to make sure that the plea would not affect his immigration status. (See Kramer affidivit at ¶5.) Defendant stated to Mr. Kramer that he did not want him to request an adjournment and that he wanted to proceed with the plea. (See Kramer affidivit at ¶5.) Mr. Kramer then went back on the record, defendant told the Court that he was willing to accept the immigration consequences of his plea and the plea allocution continued (T: 4-5).

The Court finds that Mr. Kramer's affidavit to be wholly credible. Mr. Kramer candidly admits that he initially told defendant that he believed he would not be deported as a result of his plea to criminal possession of stolen property in the second degree, though he qualified that advice and stated that he could not guarantee that it was correct. Similarly, Mr. Kramer's recollection regarding the off-the-record conversation with defendant that occurred during the plea proceedings has the ring of truth. Given the uncertainty interjected by the Court's warnings with regard to the immigration consequences of the plea, it makes perfect sense that Mr. Kramer would suggest to defendant that he request an adjournment in order to consult with an immigration attorney, as opposed to contradicting the Court and continuing to tell defendant that the plea would not affect his immigration status as defendant would like the Court to believe.[FN5] Thus, not only has Mr. Kramer owned up to initially having given erroneous advice, but his affidavit also contains details that are consistent with what an experienced attorney would likely do under the circumstances. On this basis, and given Mr. Kramer's reputation in this Court, the Court finds his affidavit to be credible, and to the extent that it contradicts defendant's affidavit, the Court finds defendant's affidavit incredible.

In support of their affirmation in opposition, the People also submit affidavits from Mr. Klein and Ms. Kligman, both of which cast further doubt upon the credibility of defendant's affidavit. As stated earlier, Mr. Klein was assigned to represent defendant after he had already pled guilty, but prior to sentencing. Defendant, in his affidavit, averred that Mr. Klein told him that he "could" face deportation consequences if he pled guilty to felony possession of stolen property. However, Mr. Klein, in his affidavit, averred that he told defendant that as a result of his plea he "would" be subject to deportation, notwithstanding his status as a political asylee. (See Exhibit C, Affirmation of Bruce Klein at ¶3-4.) Mr. Klein also avers that he told defendant that he could and would file a motion to withdraw the plea if defendant directed him to do so. (See Affirmation of Bruce Klein at ¶4.) In addition, Mr. Klein contacted Assistant Attorney General Kligman and informed her that defendant, in fact, "would likely" be subject to deportation and asked her if she would consent to the withdrawal of the plea and agree to allow defendant to re-plead to a misdemeanor offense that would allow defendant to avoid deportation. (See Affirmation of Bruce Klein at ¶5.) Ms. Kligman refused to consent to allowing defendant to withdraw his plea because defendant had refused her earlier offer of a more favorable plea, which was premised upon his cooperation with the prosecution. (See Affirmation of Bruce Klein at ¶5, Exhibit A, Affirmation of Brandi Kligman at ¶3.) Mr. Klein also informed Ms. Kligman that he may file a motion to withdraw defendant's guilty plea prior to sentencing. (See Affirmation of Brandi Kligman at ¶6.)

Like Mr. Kramer, Mr. Klein is a highly respected, veteran criminal defense attorney, who has ably represented his clients before this Court for many years. The Court has no doubt that Mr. Klein is telling the truth when he avers in his affidavit that he advised defendant that he would be deported as a result of his plea and that he could and would file a motion to withdraw his plea if authorized by defendant to do so. Indeed, Mr. Klein's averments regarding the advice [*4]he gave to defendant are corroborated by both Ms. Kligman's affidavit and the sentencing minutes. The sentencing minutes indicate that at the outset of the sentencing proceeding, Mr. Klein placed on the record many of the details that he avers to in his affidavit: that he spoke to an immigration expert, and that after doing so, on at least three occasions advised defendant that based upon the plea, after completing his sentence, "he will probably, if not definitely, be deported" (T: 2-3). Mr. Klein then placed on the record that defendant told him that he understood the immigration consequences and that he wished to go forward with the plea and sentencing (T:3). Defendant was given an opportunity to make a statement and did not say anything regarding the immigration consequences of the plea or that he desired to withdraw his plea, but only asked the Court to clarify whether the charge he pled to could be sustained if he was not the person who actually stole the cars in question (T:4). In addition to the sentencing minutes, Ms. Kligman's affidavit corroborates Mr. Klein with respect to his offer to file a plea withdrawal motion on behalf of defendant as Ms. Kligman states that, prior to the sentencing date, Mr. Klein told her that he may file such motion. (See Kligman affidavit at ¶6.) For all these reasons, the Court finds Mr. Klein's affidavit to be credible and to the extent it contradicts defendant's unadorned, self-serving declarations, the Court finds defendant's affidavit incredible.

According to Padilla v. Kentucky, 130 S. Ct. 1473, 1483 (2010), a criminal defense attorney must provide advice in the specialized area of immigration law in those cases in which the immigration law is succinct, clear, and explicit in defining the removal consequences of a conviction.[FN6] However, where the deportation consequences of a particular guilty plea are unclear or uncertain, the duty of the criminal defense attorney is to "do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences." Id. at 1483.[FN7] Ordinarily, when defendant is to plead guilty to an aggravated felony, counsel's duty is to inform defendant that deportation is mandatory and that it is virtually certain he will be deported. See People v. Doumbia, _ N.Y.S.3d _, 2017 WL 3850754 (1st Dept. Sept. 5, 2017); People v. Candel, 152 AD3d 435 (1st Dept. 2017); People v. Corporan, 135 AD3d 485 (1st Dept. 2016). Here, however, due to defendant's status as an asylee, the immigration consequences of defendant's plea were not truly clear and thus plea counsel was constitutionally obliged only to advise defendant that his plea to criminal possession of stolen property in the second degree might carry a risk of adverse immigration consequences. See Padilla, supra at 1483; People v. West, 150 AD3d 901 (1st Dept. 2017)(where defendant pled guilty to sexual abuse in the first degree and there was an issue as to whether this conviction constituted an aggravated felony, counsel's advice that defendant could be deported did not render counsel ineffective). And indeed, this is in effect what Mr. Kramer did prior to the plea proceedings and during the plea proceeding when he told defendant that he could not guarantee that defendant would not be deported as a result of a plea to criminal possession of stolen property in the second [*5]degree. However, Mr. Kramer went above and beyond what was constitutionally required. Just as Justice Alito advised in his concurring opinion, prior to defendant entering his plea, Mr. Kramer urged defendant to seek an adjournment so that he could consult with a specialist in immigration law. See Padilla, supra, at 1494 (Alito, J., concurring). It was only after defendant turned down Mr. Kramer's offer and directed him to go forward with the plea that the plea allocution continued. Under these circumstances, it is hard to see how Mr. Kramer's representation could be considered deficient.

The recently decided case of People v. Doumbia. supra, does not alter the Court's conclusion regarding the sufficiency of Mr. Kramer's advice. In Doumbia, the First Department found an attorney's advice was deficient where he merely advised a defendant that he "could" be deported upon his guilty plea to an aggravated felony. The Court explicitly rejected the People's argument that counsel was excused from advising defendant that deportation was a virtual certainty because defendant had certain yet to be explored avenues of relief from deportation available to him, including those under the Convention Against Torture (CAT). The instant case, however, is readily distinguishable from Doumbia. Here, the fact that defendant's lawful status had been adjusted after there had been an official recognition that defendant would be in danger of being subjected to torture if returned to his native Guinea establishes that, unlike Doumbia's hypothetical options, defendant was in a realistic position to establish his eligibility for relief from removal under CAT. See 8 U.S.C. § 1231(b)(3)(A), 8 C.F.R. § 1208.16; cf. People v. Doumbia, supra, (Tom, J., dissenting) citing De la Rosa v. Holder, 598 F.3d 103, 109 (2d Cir. 2010)("Article 3 of the CAT prohibits deportation of any person to a country where it is more likely than not that the individual would be in danger of being subjected to torture"); Garcia v. Attorney General of the United States, 271 Fed Appx 160 (3d Cir. 2008)(noting that an aggravated felon could potentially be eligible for relief from removal under CAT). Moreover, here, unlike in Doumbia, defendant rejected plea counsel's offer to seek advice from an immigration attorney. Thus, under the unique circumstances of the instant case, plea counsel was relieved of advising defendant with requisite certainty that he will or would be deported upon his plea of guilty.

Even assuming arguendo, that Mr. Kramer's advice regarding the immigration consequences of defendant's plea renders his representation deficient, defendant has failed to establish that he was prejudiced by any such deficiency.[FN8] Initially, the Court notes that prior to pleading guilty defendant was indisputably made aware by the Court of the potential for deportation as the Court warned defendant of the "dire" immigration consequences of his plea and that he should "plan for the worst". Thus, if Mr. Kramer failed to put defendant on notice of the substantial likelihood of deportation, the Court clearly did. See People v. Rodriguez, 150 AD3d 1029 (2d Dept. 2017)(no prejudice shown where counsel failed but the court put defendant on notice of the immigration consequences of pleading guilty); People v. Diaz, 92 AD3d 413, 414 (2d Dept. 2012)(court's warning sufficed to apprise defendant that the consequences of his [*6]guilty plea extended to immigration status). Moreover, after having pled guilty, but prior to having been convicted, defendant admits and the sentencing minutes make clear that Mr. Klein made defendant aware that he faced a substantial likelihood, if not a virtual certainty, of being deported as a result of his plea. Even though he was made so aware by Mr. Klein, when then given a choice whether to file a motion to withdraw his plea or to proceed, defendant rejected his attorney's offer and chose the latter option. Thus, it is disingenuous for defendant to now complain (though not altogether surprising in light of the fact that he is in the midst of removal proceedings) that either counsel's performance was deficient.

Finally, all of the other factors courts are required to consider in determining prejudice, including the potential sentence defendant faced if convicted after trial, the strength of the People's case, and the particular circumstances informing defendant's desire to remain in the United States, all militate against such a finding. See People v. Alvarracin, 148 AD3d 1041 (1st Dept. 2017). Initially, the Court is hard-pressed to see how defendant was prejudiced given the favorable plea bargain that Mr. Kramer obtained on his behalf. Defendant, who received a one to three year indeterminate sentence, was facing a maximum indeterminate sentence of five to fifteen years on each of the twelve criminal possession of stolen property in the second degree charges. While the Court does not diminish the seriousness of the collateral consequence of deportation, given defendant's sentence exposure, the Court rejects as incredible defendant's claim that had he known he would likely be deported, he would not have accepted the instant plea and sentence bargain. See People v. McDonald, 1 NY3d 109,115 (2003) citing Hill v. Lockhart, 474 U.S. 52, 59 (1985)(prejudice established if there is a reasonable possibility that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial). In addition, in light of both Ms. Kligman's and Mr. Klein's affidavits detailing the plea negotiations there is no reason to believe that counsel could have obtained a plea to a lesser offense that would not have subjected defendant to mandatory deportation. See People v. Heywood, 138 AD3d 607 (1st Dept. 2016).

That defendant did not suffer prejudice due to any ineffectiveness on the part of counsel is especially true here given the strength of the evidence against defendant and the lack of evidence establishing defendant's ties to this country. The evidence presented to the Grand Jury was voluminous and overwhelming as it included the testimony of numerous witnesses, intercepted conversations, documentary evidence and video surveillance that inculpated defendant in the car theft ring. Indeed, this evidence, together with defendant's admissions during the plea allocution, clearly established that defendant knew that the cars were stolen and that his current claim that he lacked such knowledge is patently false and fatuous. Moreover, defendant has failed to establish that he has significant family ties to this country. Defendant has only been in the United States since 2009 and only mentions in his memorandum of law that he is a married father of three children. (See Memorandum of Law at p.2). Significantly, nowhere in his affidavit does defendant detail whether he is actually living with his wife and children, the age of his children, or whether any other family members reside in the United States. Thus, defendant has fallen woefully short of satisfying the requirement of establishing prejudice

For the reasons stated above, defendant's motion to vacate his judgment of conviction is denied in all respects.

This constitutes the decision, opinion and order of the court.

Dated:

Bronx, New York

______________________

Hon. Steven Barrett

Justice of the Supreme Court Footnotes

Footnote 1:Defendant indicates his status was adjusted based upon his having been granted asylum that was due to his having been persecuted in Guinea. Defendant further claims that if he is deported to Guinea he faces torture and even death. (See Affirmation of Defendant at ¶4, Defendant's Memorandum of Law at p. 3.)

Footnote 2:After representing defendant at the plea proceeding, Mr. Kramer requested to be relieved as he planned on retiring from the practice of law and the court assigned Mr. Klein to represent defendant.

Footnote 3:Defendant explains that his attempts to reach Mr. Kramer for such an affidavit were unsuccessful and offers no explanation for his failure to submit an affidavit from Mr. Klein. (See Affirmation of Matthew Borowski at ¶16.) However, the People were able to reach Mr. Kramer, as well as Mr. Klein and Assistant Attorney General Brandi Kligman, Esq., and have supplied affidavits from each of them. As will be detailed below, these affidavits contradict defendant's affidavit, cross-corroborate each other, and are corroborated in part by the plea and sentencing minutes.

Footnote 4:Unfortunately, Mr. Kramer failed to place the substance of this conversation on the record.

Footnote 5:Of course, under the circumstances of this case, it would have been better practice for Mr. Kramer to reach out to an immigration attorney at the outset of plea negotiations as opposed to rely upon the People's good-faith advice.

Footnote 6:Because defendant's conviction became final long after the Supreme Court's decision in Padilla, the Padilla holding is clearly applicable to this case.

Footnote 7:Justice Alito's forewarning that "this vague, halfway test will lead to much confusion and needless litigation" appears to have been rather prescient. See Padilla, supra at 1487 (Alito, J., concurring).

Footnote 8:Another major difference between this case and Doumbia is that Doumbia was decided on direct appeal and this case is on collateral review and the Court has received affidavits from defendant and all counsel attesting to the essential facts and has reviewed the grand jury minutes, and therefore has a basis for concluding that defendant has failed to satisfy his burden of establishing prejudice.