People v Rivadeneira
Annotate this CaseDecided on December 15, 2009
District Court of Nassau County, First District
The People of the State of New York, Plaintiff
against
Janeth Rivadeneira, Defendant.
2005 NA 24878
Hon. Kathleen Rice, Nassau County District Attorney
Attorney for Defendant: Milton H. Florez, Esq.
Sondra K. Pardes, J.
On February 14, 2006 the defendant herein pled guilty to one count of Attempted Petit Larceny (P.L.§110/155.25), a class B Misdemeanor.
The defendant, who is a non-citizen legal resident now moves to vacate that plea on the grounds that she was denied affective assistance of counsel because her attorney "erroneously" told her that the plea would not adversely affect her immigration status.
The defendant attests that while her case was pending, she repeatedly told her attorney, Abel Arcia, Esq., that her "primary concern" with any possible disposition was that there not be any adverse immigration consequences. She states that he advised her that if she accepted the plea offer, that she finally accepted ,she would not be making any admission of wrongdoing and he assured her that the offense would have no adverse immigration consequences." The defendant states that she relied on her attorney's erroneous assurances, and that he "coerced" her to accept the plea and that she has now been placed in deportation proceedings "as a direct result of the guilty plea that I entered in Nassau County."
The defendant's prior attorney, E . Abel Arcia, Esq., submitted an affidavit in support of the defendant's motion in which he acknowledges that the defendant did voice concerns about possible immigration consequences of the plea offered on her case and he "erroneously told her that the offered plea would not give rise to any immigration [*2]consequences."
The People oppose the defendant's motion and point to the fact that the defendant had a prior federal drug conviction from 1994 which resulted in five years probation and deportation proceedings that were commenced in 1995. The People argue that the "(d)efendant's current removal proceedings are based largely, if not entirely, on that prior conviction, and there is no evidence that the defendant advised her defense attorney of that conviction prior to pleading guilty."
The People submitted a copy of an FBI record search which reflects that the defendant was arrested on June 12, 1991, for possession of cocaine and entered a guilty plea on December 2, 1994. The People argue that the defendant has not established that the Nassau County conviction is the sole cause of her deportation. Moreover, they argue that the attempted petit larceny conviction , " standing alone, could not subject defendant to removal for committing a crime involving moral turpitude because she had been in the country more than ten years and it is not punishable by a year or more of imprisonment."
A review of the transcript of the plea proceedings reveals that the court, (Jaffee,J.), with the assistance of an official court interpreter, questioned the defendant at length to determine if she understood the nature of the plea and the consequences thereof. In response to the court's question the defendant stated that no promises had been made to her to induce her to plead guilty. In addition, the defendant stated that she was aware that the guilty plea would result in a "criminal conviction" and she affirmatively stated that on the November 14, 2008 she attempted to steal a blouse without paying for it. The transcript of the plea clearly contradicts the defendant's assertion that she understood that she would "not be making any admission of wrongdoing," by entering into the plea.
As a general rule "deportation is a collateral consequence of conviction" and therefore the court need not advise a defendant of the possibility of deportation . Moreover, a failure to warn a defendant of the possibility of deportation does not constitute ineffective assistance of counsel, (see, People v Ford, 86 NY2d 397, 403 [1995]). However, an attorney's incorrect advice as to the deportation consequences of a plea, may, in certain circumstances, constitute ineffective assistance of counsel, People v McDonald, 1 NY3d 769 [2003]. In McDonald the defendant's attorney assured him that his guilty plea to two felonies would not result in deportation and he was then served with notification of a deportation hearing, the day after his sentence. The McDonald court applied the two part test articulated in Strickland v Washington, 466 US 668 1984 to evaluate the defendant's claim that his reliance on his attorney's incorrect advice constituted ineffective assistance of counsel. "A defendant must show that counsel's performance was deficient' and that the deficient performance prejudiced the defense;'" [*3]McDonald, 1 NY3d at 113; citing Strickland 466 at 687.
In the instant case the defendant's argument fails both prongs of the Strickland test. The defendant failed to establish that she advised her attorney of her prior 1995 conviction and therefore she failed to show that his advice, that her 2006 conviction would not result in deportation, was in fact " erroneous ". Moreover, the defendant did not deny the People's assertion that her 2006 B misdemeanor conviction alone would not have triggered a deportation proceeding. Therefore she failed to establish that his advice, given the specific circumstances of her case, was deficient
In addition the defendant failed to meet the second prong of Strickland as well. She failed to make a prima facie showing of prejudice because she did not even allege that "but for counsel's error defendant would not have pleaded guilty,"( McDonald 1 NY 3 at 115).
Accordingly, based on the above the defendant's motion to vacate her plea is DENIED.
This constitutes the order and decision of this court.
SONDRA K. PARDES
D.C.J.
Dated: December 15, 2009
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