People v Robles-Mejia

[*1] People v Robles-Mejia 2010 NY Slip Op 50808(U) [27 Misc 3d 1219(A)] Decided on April 16, 2010 Supreme Court, Bronx County Seewald, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 16, 2010
Supreme Court, Bronx County

The People of the State of New York

against

Bonafacio Robles-Mejia, Defendant.



2430/01



The People were represented by Assistant District Attorney Noah J. Chamoy of the Office of the Bronx County District Attorney.

The defendant was represented by Alexander Sanchez, Esq., Bronx County.

Robert G. Seewald, J.

Defendant's motion, pursuant to CPL § 440.10 (1) (h), to vacate the instant judgment of conviction is denied.

The concrete issue presented by the instant motion is whether the defendant was specifically informed by his prior attorney that he was subject to deportation before he pleaded guilty to the felony of criminal possession of a controlled substance in the third degree (PL § 220.16 [1]) and, moreover, assuming he was not so appropriately warned and counseled, whether the defendant has also established that he was thereby "prejudiced" (see Strickland v Washington, 466 US 668 [1984]).

As discussed more fully below, the record-based-evidence in this case conclusively established that defendant's attorney did in fact appropriately warn the defendant that he risked deportation as a consequence of his guilty plea; in any event, assuming a reviewing state appellate - or federal habeas - court would not concur, defendant would still not be entitled to the relief sought, as the record-based-evidence also clearly revealed that defendant was not "prejudiced" by his attorney's alleged shortcomings. Rather, defendant was solely motivated to plead guilty in order to avoid - at all cost - a mandatory lengthy prison term if convicted after trial - notwithstanding that it carried a serious risk of deportation.

On April 25, 2001, at about 7:30 in the morning, defendant was arrested after police officers executed a search warrant inside apartment 3H at 740 Grand Concourse (Bronx County). According to the felony complaint, defendant and codefendant Hernandez were both in the apartment at the time the warrant was executed. The codefendant "was located in bedroom number one (1) and defendant . . . was "located inside a separate smaller room" (felony complaint [p 2]). The felony complaint further alleged that the defendant and codefendant both [*2]stated they resided in the subject apartment.

The felony complaint also revealed that numerous items were recovered from bedroom number one, including contraband: 59 small balloons, 5 plastic bags, and 95 glassines, all of which contained a white powdery substance - believed to be heroin and weighing in excess of 4 ounces.

Also recovered from bedroom number one were the following items: 11 boxes containing numerous empty glassines: one electric scale; 28 bars containing a white soap-like substance; and 2 bottles containing a clear liquid.

About two weeks later, on May 9, 2001, the Grand Jury of Bronx County indicted defendant [and codefendant Hernandez] for criminal possession of a controlled substance [i.e., heroin] in the first degree (PL § 220.21 [1]), criminal possession of controlled substance in the second degree (PL § 220.18 [1]) and criminal possession of a controlled substance in the third degree (PL § 220.16 [1]), as well as three other lesser drug-related crimes.[FN1]

Defendant was subsequently arraigned on the indictment on May 22nd in Part A of Supreme Court. Represented by counsel - who was also representing the codefendant - defendant pleaded not guilty. The judge presiding continued defendant's remand status; defendant had remained in custody since his arrest the preceding month.

The defendant later appeared in Part A on May 30th. His attorney made a bail application, which was denied.

The case was initially assigned to this Court the next month, on June 8th [2001], for trial or disposition via a guilty plea. Defendant was produced and he was now represented by a new attorney. [His former attorney continued to represent the codefendant.] The case was then adjourned to June 12th, when defendant's new attorney made a bail application, which this Court also denied. However, four days later, on June 16th, according to notations on the official court file, when the defendant was produced, the Court granted his attorney's renewed bail application - setting bail in the amount of $300,000.00, bond or cash. The defendant, though, remained confined until June 20th, as he was apparently unable to post bail in the intervening period.

When the case next appeared on this Court's calendar, on June 25th, defendant was now at liberty, bail having apparently been posted. Prior on-going plea negotiations were renewed.

Although the defendant was represented by experienced counsel, defendant faced a lengthy period of imprisonment if he was convicted after trial. More particularly, if the defendant was convicted of the top count - the class A-I felony of criminal possession of a controlled substance in the first degree - he faced a mandatory minimum indeterminate sentence of 15 years to life [under the sentencing laws then in effect].On the other hand, even if trial counsel was able to secure an acquittal from the jury on the top count, the next serious count, the class A-II felony of criminal possession of a controlled substance in the second degree, was then punishable by a mandatory minimum indeterminate sentence of 3 years to life. If convicted of only the [*3]third count, defendant would still be facing an indeterminate minimum mandatory period of incarceration of 1 to 3 years and a maximum of 8 1/3 to 25 years [under the sentencing laws then in effect]. This class B felony of criminal possession of a controlled substance in the third degree - which, unlike the charged class A-I and A-II felonies, did not require the prosecution to prove that the defendant possessed a specified quantity of a controlled substance, but rather an intent to sell same (see PL 220.16 [1]).

In view of the potential mandatory sentencing exposure that the defendant was facing if convicted after trial, defense counsel nonetheless was able to extract an extraordinarily generous plea offer from the prosecution - one which would not subject the defendant to any period of incarceration (beyond time already served). More particularly, the People would move to dismiss the first two counts of the indictment (so as not to run afoul of the plea strictures prescribed by CPL § 220.10 [5] [a] [i]), and then allow the defendant to plead guilty to the class C felony of attempted criminal possession of a controlled substance in the third degree (PL § 110/220.16 [1]) - in exchange for a sentence of probation.

Subsequently, on June 25th [2001], defendant accepted the People's offer and, about seven weeks later, on August 14th, this Court imposed the promised probationary sentence, thus resulting in the defendant's continued liberty.

Clearly, continued maintenance of his freedom was surely no small matter to the defendant; indeed, it was of paramount importance, as evidenced by defendant's revealing remarks to the probation officer who had interviewed him in connection with preparing the required presentence report: "He admits guilt herein, adding that he did so to avoid jail time" (probation report [dated 8/10/01], p 4, annexed as exhibit No.4 to the People's affirmation in opposition [dated 4/6/10] [emphasis supplied]).

Defendant apparently suffered no adverse consequences from his guilty plea for the next six years. However, on September 30, 2007, defendant was personally served with a deportation notice by the US Department of Immigration. Less than two and one-half years later, on February 22, 2010, defendant served the instant motion to vacate the extant judgment of conviction, pursuant to CPL § 440.10 (1) (h). In essence, defendant alleges that the attorney who secured the plea bargain gave him erroneous or otherwise faulty advice regarding the immigration consequences that would ensue upon his pleading guilty to a drug felony.

Specifically, in his supporting affidavit [executed on 2/9/10], defendant averred, in relevant part, as follows:

"4. At the time of my arrest I was a PermanentLegal Resident'. . . of the United States.

5. While my case was pending before the Court, I sought counsel from my attorney concerning the potential impact my criminal case would have on my immigration status. This issue was of grave importance to me because I was living in the [US] legally. I desired to stay in the [US], and sought a clear understanding from my attorney . . . of the precise implications of my criminal case would have on my immigration status. [*4]

6. When I discussed this matter with [my attorney] I specifically asked him if a conviction to Attempted Criminal Sale of a Controlled Substance (P.L. Sec 110/220.16) a class C felony, would have the following consequences: 1) Denial, or revocation of my Permanent Residency Status and 2) Deportation.

7. I was specifically told by [my attorney] . . . that a plea of guilty to the Felony Criminal Possession charge would not affect, in any way, my status as a permanent legal resident, that no immigration consequences would ensue as a result of this plea, and that I would not be deported based upon this plea of guilty.

8. [My attorney] did not tell me that such a plea could, or would impact my immigration status, then, or at any time in the future. Nor, did he inform me that he was unaware of the rules and regulations concerning immigration related issues, and therefore, was unable to counsel me as to this most important issue.

9. Based upon the assurances provided to me by [my attorney], I elected to enter a plea of guilty . . . and accepted a 5[-]year probationary sentence . . .

11. I hereby state truthfully . . . that I would never have entered a plea of guilty to the felony drug charges had I been properly informed that my immigration status would be in jeopardy. To knowingly have placed . . . myself in this situation is something I would not have done. I plead guilty based upon the misinformation I had been provided by my own attorney".

In opposing the defendant's application, the People have submitted an affidavit [dated 3/22/10] by the attorney who, according to the defendant, advised him "that no immigration consequences would ensue as a result of this plea, and that [he] would not be deported based upon this plea of guilty" (defendant's affidavit [dated 2/9/10], id. at ¶7). In relevant part, defendant's plea attorney averred as follows:

"In 1992, I opened my own private practice with an emphasis on criminal defense. . . . My experience in criminal defense encompasses both trial and appellate work, misdemeanors through homicides. I have also conducted both state and federal work. I estimate that I have represented defendants on over a thousand criminal cases in my career, more than half of which involved narcotics offenses.

I was retained by [the defendant] to represent him on . . . [the instant] indictment accusing [the codefendant] and him of first-degree criminal possession of a controlled substance, and lesser counts, for their alleged possession of more than four ounces of heroin discovered during the execution of a search warrant of their apartment.

I do not recall the date I first interviewed [the defendant], but it was either just [*5]before or just after my first appearance before . . . [Justice] Seewald.[[FN2]] At my initial interview of [defendant], I inquired as to his immigration status . . . . I recall that he told me that he was not a United States Citizen.

.....

I believe the Bronx District Attorney's Office offered a generous plea of attempted third degree criminal possession of a controlled substance with a sentence

of five years probation to [the defendant] . . . . Ialso believed that while neither [defendant] nor[codefendant] were primarily responsible for thedrugs recovered from the apartment,defendingthe case would have been difficult because thequantity of drugs, coupled with the condition ofthe apartment made it highly probable that bothdefendants were not innocent visitors.

On June 25, 2001, I had a conversation with [defendant] in the courtroom . . . . The Court provided an interpreter and . . . g[a]ve me as much time as I needed to speak with [defendant].

I advised him that he risked deportation or exclusion by pleading guilty to attempted criminal sale of a controlled substance in the third degree, a class C felony. When I stated for the record on page 17 of the plea minutes [- discussed, below - ] that I had discussed the con- sequences of the conviction vis-á-vis immigration' with [defendant], it was because I had informed him that there could be adverse consequences. The only reason I would have made the statements contained in the record would be to advise the court that I gave advice as to potential adverse consequences; I would never have referred to such a discussion if I told [defendant] that he faced no additional risks. . . . [Emphasis added.]

.....

During my conversations with [defendant], I also informed him of the possible sentences if convicted after trial. I warned him that, even as a first felony offender, a conviction for first-degree criminal possession of a controlled substance, a class A-I felony, would subject him to a minimum prison sentence of fifteen years and that it included a maximum life' component, and that a conviction for second-degree criminal possession of a controlled substance, a class A-II Felony, would still include a life' component. I recommended that he take the plea of third-degree criminal possession of a controlled substance with five years probation. [*6]

Finally, I reviewed the Department of probation Pre-sentence Report before defendant appeared for sentencing. The comments provided by [defendant] in that report correspond entirely with statements he had made to me".

In Strickland v Washington (466 US 668 [1984]), "the Supreme Court adopted a two-part test for evaluating claims of ineffective assistance of counsel generally. A defendant must show that counsel's performance was deficient,' and that the deficient performance prejudiced the defense' [citation omitted]". The first prong of the Strickland test is essentially a restatement of attorney competence, which requires a showing that counsel's representation fell below an objective standard of reasonableness [citation omitted]. The second prong, also known as the prejudice prong, focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process' [citation omitted]. In order to satisfy this prong, a defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial' [citation omitted]" (People v McDonald, 1 NY3d 109, 113-114 [2003]).

Most recently, in Padilla v Kentucky (559 US __ [decided 3/31/10], 130 S Ct __, 2010 WL 1222274) the United States Supreme Court had occasion to review a claim of ineffective assistance of counsel in the context of a case similar to the instant setting. Defendant Padilla, a lawful permanent resident of the United States for more than forty years, pleaded guilty to transporting a large quantity of marijuana. Upon his subsequent receipt of a deportation notice, he sought to vacate his conviction upon the alleged ground "that his counsel not only failed to advise him of this consequence prior to entering the plea, but also told him that he did not have to worry about immigration status since he had been in the country so long' [citation omitted]" (slip op, p 1). However, unlike the defendant at bar, defendant Padilla also "allege[d] that he would have insisted on going to trial if he had not received incorrect advice from his attorney" (id.).

The Supreme Court "agree[d] with Padilla that constitutionally competent counsel would have advised him that his conviction for drug distribution made him subject to automatic deportation. Whether he is entitled to relief depends on whether he has been prejudiced, a matter that [the Court did] not address" (id. at 2 [emphasis added]).

Noting that a defendant is entitled to effective assistance of counsel before deciding to enter a guilty plea (id. at 7), the Supreme Court observed that, "[u]nder Strickland, we first determine whether counsel's representation fell below an objective standard of reasonableness' [citation omitted]. The first prong - constitutional deficiency - is necessarily linked to the practice and expectations of the legal community: The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.' [Citation omitted]" (id. at 9).

"The weight of prevailing professional norms supports the view that counsel must advise [his or] her client regarding the risk of deportation [citations omitted]. . . . . [A]uthorities of every stripe - including the American Bar Association, criminal defense and public defender organizations, authoritative treatises, and state and city bar [*7]publications - universally require defense attorneys to advise as to the risk of deportation consequences for non-citizen clients . . . ." [citations omitted]" (id. at 9-10).

Thus, the Supreme Court concluded that "when the deportation consequence is truly clear,. . . the duty to give correct advice is equally clear" (id. at 12). "[W]e have long recognized the negotiation of a plea bargain is a critical phase of litigation for purposes of the Sixth Amendment right to the effective assistance of counsel. [Citation omitted.] The severity of deportation . . . only underscores how critical it is for counsel to inform [his or] her noncitizen client that he faces a risk of deportation [footnote omitted]" (id. at 16). "[W]e now hold that counsel must inform [his or] her client whether his plea carries a risk of deportation" (id. at 17 [emphasis supplied]).[FN3]

The Supreme Court, however, did not resolve the ultimate issue - i.e., vacatur of his conviction - raised by the defendant. Rather, the Court ended its opinion by stating:

"Taking as true the basis for his motion for postconviction relief, we have little difficulty concluding that Padilla has sufficiently alleged that his counsel was constitutionally deficient. Whether Padilla is entitled to relief will depend on whether he can demonstrate prejudice as a result thereof, a question we do not reach because it was not passed on below (id. at 17).

Surely, if the only evidence in this case was the two sharply conflicting and contradictory affidavits of the defendant and his plea attorney, a hearing would be required to resolve the contested factual issue. Indeed, juxtaposing the two respective affidavits, the conclusion is readily apparent that if defendant's foregoing averments are accepted as true, then his plea attorney's averments must, as logical consequence, be false, or vice-versa if the plea attorney's averments are accepted as true.

In any case, CPL § 440.30 [4] prescribes, in relevant part, as follows:

"Upon considering the merits of the motion, the court may deny it without conducting a hearing if:

(d) An allegation of fact essential to support the motion (i) is contradicted by a court record and is unsupported by any other affidavit or evidence, and (ii) under these and all the other circumstances attending the case, there is no reasonable possibility that such allegation is true".

As quoted earlier, defendant averred: [*8]

7. I was specifically told by [my attorney] . . . that a plea of guilty to the Felony Criminal Possession charge would not affect, in any way, my status as a permanent legal resident, that no immigration consequences would ensue as a result of this plea, and that I would not be deported based upon this plea of guilty.

8. [My attorney] did not tell me that such a plea could, or would impact my immigration status, then, or at any time in the future. Nor, did he inform me that he was unaware of the rules and regulations concerning immigration related issues, and therefore, was unable to counsel me as to this most important issue.

However, defendant's averment is completely undermined - if not rendered perjurious - by his attorney's on-the-record statement during the course of the plea proceeding (at p 17 of the plea transcript - annexed as exhibit #

3 to the People's affirmation in opposition [dated 4/6/10]):

DEFENSE COUNSEL: [Defendant] withdraws his previously entered plea of not guilty, and in its place enters a plea of guilty to attempted criminal possession of a controlled substance, in the third degree . . . that plea in full satisfaction of the indictment before this Court.

Before Your Honor allocute[s] the defendant, I would like to place on the record that with the assistance of the interpreter, the Court staff made this courtroom available to us well before Your Honor took the bench, that we had an extensive conversation about the plea that the collateral terms, consequences of the conviction vis-á-vis immigration and other collateral consequences were explained to the defendant prior to him making the decision to take this plea" [emphasis supplied].

It will be recalled that defendant's attorney - in response to the instant motion

- averred, in relevant part, that:

"On June 25, 2001, I had a conversation with [defendant] in the courtroom . . . . The Court provided an interpreter and . . . g[a]ve me as much time as I needed to speak with [defendant].

I advised him that he risked deportation or exclusion by pleading guilty to attempted criminal sale of a controlled substance in the third degree, a class C felony. When I stated for the record on page 17 of the plea minutes [- discussed by the Court, infra -] that I had discussed the consequences of the conviction vis-á-vis immigration' with [defendant], it was because I had informed him that there could be adverse consequences. The only reason I would have made the statements contained in the record would be to advise the court that I gave advice as to potential adverse [*9]consequences; I would never have referred to such a discussion if I told [defendant] that he faced no additional risks. . ." [emphasis added].

The Court must concur with this compelling and clearly inescapable logical conclusion. Manifestly, if the plea attorney had not duly warned the defendant about the adverse immigration consequences of the plea and, moreover, erroneously assured him there would be none, as per the defendant's averments, then there can be absolutely no rational reason - none whatsoever - for the plea attorney to have placed his aforesaid statements on the record of the plea proceeding. What is more, the plea record plainly revealed that defendant remained completely mute immediately after his attorney placed those remarks on the record; consequently, in the face of his utter silence, the defendant must be deemed to have acquiesced and impliedly acknowledged that he was specifically warned about the adverse immigration consequences that his plea could generate in futuro.

Furthermore, later at the proceeding, when the Court asked the defendant if any other promises or threats had been made to force or induce him to plead guilty, defendant stated "No" (at p 19).

In any event, assuming defendant's plea attorney rendered completely erroneous advice on the subject of deportation, as alleged by the defendant, this would still not entitle the defendant to the relief sought. As noted at the outset, to establish ineffective assistance of counsel, defendant still must "show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial [citation and internal quotation marks omitted]" (People v McDonald, 1 NY3d at 115; see also Padilla v Kentucky (slip op at 17).

Putting aside for the moment that defendant does not aver that he would have insisted on going to trial - unlike the defendant Padilla (id. at 1) (see also People v Bao Lin Xue, 30 AD3d 166, 167 [1st Dept 2006], lv denied 7 NY3d 809) ["Even assuming the truth of defendant's assertion that his attorney misadvised him that his plea would not result in his deportation, that allegation was insufficient to establish ineffective assistance, because defendant never claimed that he would have gone to trial had he known the plea's immigration consequences"]), his plea attorney averred that when he had discussed the People's plea offer, "[t]he main concern [defendant] expressed to me was his desire to get out of jail, as he had been incarcerated from his arrest". The plea attorney's statement is completely corroborated by evidence documented more than eight years ago. Specifically, as earlier noted, in the Probation Report [dated 8/10/01, p 4] (annexed as exhibit #

4 to the People's affirmation in opposition [dated 4/6/10]), it is clearly reported that "defendant admits his guilt in the instant offense, adding that he pled guilty to avoid jail time" [emphasis added] - which, the Court would again note, carried the prospect of a mandatory minimum indeterminate sentence of 15 years to life.Significantly, defendant, who had been served with the People's affirmation in opposition [dated 4/6/10] and its various exhibits, has elected not to file a reply affirmation - to challenge his plea attorney's affidavit that defendant's sole objective was to avoid imprisonment. Nor does the defendant assail the accuracy of his statements to the probation officer [*10]who prepared the subject presentence report.

The case at bar bears remarkable similarities to United States v Yong Won Park 222 Fed Appx 82 [2nd Cir 2007]). Five years after he had pleaded guilty to trafficking in counterfeit goods, the petitioner brought a writ of coram nobis, claiming "that his guilty plea was involuntary or unknowing because his attorneys failed to warn him of the immigration consequences of his plea. [Citation omitted]" (id. at 83). The Second Circuit affirmed the District Court's denial of his writ, reasoning as follows:

"We conclude that in the context of this case, Park's contention that he would not have pleaded guilty if he had known the deportation consequences that flowed from his guilty plea is not credible. Park faced overwhelming evidence of his guilt, and the record indicates that the critical issue' with respect to his decision to plead was whether a suppression hearing would be successful. Thus, even had he been aware of the immigration consequences of the plea, Park would have been faced with the strong likelihood of conviction at trial. He would also have been aware that such a conviction would trigger the same deportation consequences and would probably result in a longer sentence. The record indicates that at the time of his plea Park was concerned about the length of his sentence. Under these circumstances, we find that Park's self-serving statements are insufficient to establish prejudice. Because Park cannot establish prejudice, there is no need to reach his argument that counsel's failure to inform him of the immigration consequences of his plea was objectively unreasonable under the first prong of Strickland".

(Id. at 83-84 [emphasis supplied]).

Unlike the defendant in Park, who was concerned with the length of his sentence, our defendant did not want any period of incarceration, much less one that could result in a minimum sentence of imprisonment of 15 years to life.

Furthermore, the evidence against the defendant - even if not overwhelming, as in Park - was certainly compelling. First of all, an attack on a search warrant rarely meets with success.[FN4] Also, a review of the felony complaint, discussed above, clearly reveals that the defendant was apprehended in a "drug factory" when the warrant was executed. Thus, even if his attorney could have successfully suppressed or impeached the officer's testimony that the defendant stated (at the time of his arrest) that he lived in the apartment, the People would surely have been entitled to have the jury instructed on the "room presumption" statute (see PL § 220.25 [2]) to establish defendant's [*11]constructive possession of the contraband.[FN5]

In this regard, defendant's plea attorney noted in his affidavit [dated 3/22/10] - annexed as exhibit # 13 to the People's affirmation in opposition [dated 4/6/10] - that "defending the case would have been difficult because the quantity of drugs, coupled with the condition of the apartment made it highly probable that both defendants were not innocent visitors". Indeed, even without the prosecution's resort to the "room presumption statute" at trial to establish evidence of the defendant's constructive possession of the contraband, the Court of Appeals, in People v Bundy (90 NY2d 918 [1997]) - a case decided almost four years prior to defendant's guilty plea, and thus presumably known to his plea attorney - held that the evidence established defendant's constructive possession of the contraband, as "only trusted members of the [drug] operation would be permitted to enter an apartment containing a large cache of drugs . . . in plain view" (id. at 920).

In any event, defendant certainly does not argue that he was unaware that a conviction after trial would also trigger the same adverse immigration consequences as a guilty plea and, moreover, would result in a lengthy sentence of imprisonment (see Park, 222 Fed Appx at 84).

Succinctly stated, defendant was willing to pay any price - regardless of immigration consequences - to draw the proverbial and most desirable "get-out-of-jail-card". Having thus drawn that card, defendant's current self-serving statements to the contrary - made more than eight years after his guilty plea - are palpably insufficient to establish prejudice as defined by Strickland.

In essence, defendant has clearly failed to establish a reasonable probability that he would not have pleaded guilty but for his plea attorney's alleged errors referable to the issue of deportation.

Accordingly, based upon the entire record before the Court, defendant's claim of ineffective assistance of counsel is completely untenable and, therefore, his motion to vacate the instant judgment of conviction, pursuant to CPL § 440.10 (1) (h), is denied.

The foregoing opinion constitutes the decision and order of the Court.

Dated: April 16, 2010_____________________

J.S.C. Footnotes

Footnote 1: All counts were predicated upon defendant acting in concert with the codefendant Hernandez.

Footnote 2: The official court file contains a notice of appearance by the defendant's plea attorney, which is dated June 8, 2001; and, as noted above, this case was initially conferenced by this Court on June 8, 2001.

Footnote 3: Parenthetically, the Supreme Court in Padilla did not limit its holding to affirmative misadvice, expressly stating that "[i]t is quintessentially the duty of counsel to provide [his or] her client with available advice about an issue like deportation and the failure to do so clearly establishes the first prong of the Strickland analysis [citation omitted]" (id. at 13).

Footnote 4: "[A] presumption of validity attaches to a search warrant because the information supporting it has already been judicially reviewed and approved [citation and internal quotation marks omitted]" (People v Calise, 256 AD2d 64, 65 [1st Dept 1998], lv denied 93 NY2d 851).

Footnote 5: Parenthetically, in order to invoke the "room presumption statute", the People are not required to prove "that defendant actually saw [the drugs and scale] or was in the same room with them [citation omitted]" (People v Santiago, 243 AD2d 328, 329 [1st Dept 1997], lv denied 91 NY2d 879, habeas corpuus dismissed 180 FS2d 471[SDNY]; see e.g. People v Alvarez, 8 AD3d 58, 59 [1st Dept 2004], lv denied 3 NY3d 670; People v Matias, 286 AD2d 637 [1st Dept 2001], lv denied 97 NY2d 731).