People v Ramirez

[*1] People v Ramirez 2010 NY Slip Op 51661(U) [29 Misc 3d 1201(A)] Decided on September 17, 2010 Criminal Court Of The City Of New York, New York County Ferrara, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 17, 2010
Criminal Court of the City of New York, New York County

The People of the State of New York

against

Fernando Ramirez, Defendant



2004NY012357



The People were represented by

Ryan Malkin, Esq.

Assistant District Attorney

New York County District Attorney's Office

One Hogan Place

New York, New York 10013

The defendant was represented by

Jorge Guttlein, Esq.

291 Broadway, Suite 1500

New York, New York 10007

Anthony J. Ferrara, J.

The Supreme Court recently held that "advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel." (Padilla v. Kentucky, 130 S Ct 1473, 1482 [2010]; cf People v. Ford, 86 NY2d 397 [1995]). On July 7, 2010, the Defendant moved, pursuant to Criminal Procedure Law § 440.10[1][h] to vacate his two convictions by guilty plea on docket numbers 2004NY012357 and 2007NY055864. With respect to each case, the Defendant affirms that he is currently being held in an Immigration Detention facility and subjected to deportation proceedings because of these convictions. He alleges that at the time of his guilty pleas he was not aware that he would be subject to possible deportation and that, previous to his plea, neither the Court nor his prior attorneys advised him of these potential adverse immigration consequences. The Defendant argues that these two convictions should be vacated because they were not knowing, intelligent and voluntary and because he was deprived of his Sixth Amendment right to effective assistance of counsel. The Court received the People's response, dated August 11, 2010, on August 27, 2010. The Court received a reply on each docket via fax on September 10, 2010. For the reasons below the Court denies Defendant's motions.

Factual History [*2]

The Defendant is a 52 year old native of the Dominican Republic who became a Lawful Permanent Resident of the United States in 1982. He and his wife, who is also a Lawful Permanent Resident, have two sons who are United States Citizens. Defendant has a significant criminal history. Prior to the two criminal cases subject to this motion, the Defendant plead guilty on three occasions: on April 6, 1984, he plead guilty to Penal Law § 220.03, criminal possession of a controlled substance in the seventh degree; on February 8, 1984, he plead guilty to Penal Law § 115.05, criminal facilitation in the second degree, a Class C felony, for which he received a probationary sentence; and on November 3, 1993, he plead guilty to Penal Law §§ 110/220.39, attempted criminal sale of a controlled substance in the third degree, a Class C felony, for which he received another probationary sentence.[FN1]

On Docket 2004NY012357, one of the two cases that are the subject of these motions, the Defendant was arrested on February 13, 2004, and charged with criminal possession of a controlled substance in the seventh degree in violation of Penal Law § 220.03. At his arraignment the next day a staff attorney of the New York County Defender Services represented the Defendant and he plead guilty to Penal Law 220.03 (hereinafter the "February 14, 2004 plea"). The court sentenced the Defendant to a conditional discharge requiring him to perform one day of community service. At the time of Defendant's February 14, 2004 plea, his attorney stated on the record that he had "advised [his client] of his immigration problems based upon the plea." (see defendant's exhibit F). The Court file shows the Defendant returned to court on April 16, 2004, with proof that he performed one day of community service.

On Docket 2007NY055864, the second case involved in these motions, the Defendant was arraigned on July 25, 2007, and charged with criminal possession of a controlled substance in the seventh degree in violation of Penal Law § 220.03, aggravated unlicensed operation of a motor vehicle in the third degree in violation of Vehicle and Traffic Law § 511[1][a], and unlicensed driving in violation of Vehicle and Traffic Law § 509[1]. The Court File indicates that a different staff attorney from the New York County Defender Services represented the Defendant and remained his attorney throughout his case. At Defendant's third court appearance after arraignment, on January 28, 2008, he plead guilty to Penal Law § 220.03 (hereinafter the "January 28, 2008 plea"). The minutes of the January 28, 2008 plea do not contain an affirmative statement that Defendant was advised of the immigration consequences of his plea. The Court imposed a sentence of a conditional discharge with four days of community service. Defendant was represented by the same defense organization that represented him three years earlier when he plead guilty to the same charge and received a similar sentence, and where, as previously noted, the record shows that he was advised of the potential immigration consequences of his plea. The Court file shows the Defendant returned to court on April 1, 2008, with proof that he performed four days of community service.

[*3]Court's Obligations and the Voluntariness of Defendant's Pleas

A motion to withdraw a plea is directed to the discretion of the court and must be supported by a showing that the defendant's rights were violated (see People v. Manley, 103 AD2d 1024 [4th Dept. 1984]; People v. Fridell, 93 AD2d 866 [2d Dept. 1983]). A trial court has the constitutional duty to ensure that a defendant, before pleading guilty, has a full understanding of the plea and its consequences (see People v Harris, 61 NY2d 9, 19 [1983]; Boykin v Alabama, 395 U.S. 238, 244 [1969]). The court is not required to engage in any particular litany when allocuting the defendant, but the record must be clear that the plea represents a voluntary and intelligent choice by the defendant (see North Carolina v Alford, 400 U.S. 25, 31 [1970] citing Boykin v Alabama, 395 U.S. 238 [1969]; People v Moissett, 76 NY2d 909, 910-911[1990]). In order for a guilty plea to be voluntary, the court must advise the defendant of all direct consequences of the plea (see People v. Ford, 86 NY2d 397 [1995]).

Although the Criminal Procedure Law mandates that the court inform the defendant of possible negative immigration consequences of a plea to a felony there is no such requirement with respect to misdemeanors; that statute also provides that the failure of the court to advise a defendant of the possible immigration consequences of a guilty plea to a felony "shall not be deemed to affect the voluntariness of the plea of guilty or the validity of a conviction, nor shall it afford a defendant any rights in a subsequent proceeding relating to such defendant's deportation." (CPL § 220.50[7]; People v. Ford, 86 NY2d 397 [1995] [holding that deportation is a collateral consequence of a criminal conviction]).[FN2] Accordingly, under New York law, the failure of a court to advise a defendant of the immigration consequences of a guilty plea does not necessarily render that plea defective and require that the plea be vacated. (see People v. Catu, 4 NY3d 242 [2005]; Ford, supra , 86 NY2d 397 [1995]; People v. Gravion, 2010 Slip Op. 4020 [2010] [holding that SORA registration and potential terms and condition of probation are collateral consequences of a guilty plea and a court's neglect to mention these during the allocution does not undermine the knowing, voluntary and intelligent nature of a plea]). However, claims that the plea was not entered into knowingly and voluntarily do survive a guilty plea (see People v. Seaberg, 74 NY2d 1, 10 [1989]).

A guilty plea will be upheld as valid if it was entered knowingly, voluntarily and intelligently (Brady v. U.S., 397 U.S. 742, 748 [1970]; People v. Flumefreddo, 82 NY2d 536, 543 [1993]). The plea record must demonstrate "an intentional relinquishment or abandonment" of defendant's constitutional rights (see Johnson v. Zerbst, 304 U.S. 458, 464 [1938]; People v. Rodriguez, 50 NY2d 553, 557 [1980]). The Court of Appeals has further elaborated that there is no "uniform mandatory catechism of pleading defendants" but that all the relevant circumstances surrounding the plea must reflect that the defendant knowingly, voluntarily and intelligently relinquished his or her rights (see People v. Harris, 61 NY2d 9, 16-17 [1983]; People v. Catu, 4 NY3d 242 [2005]). Relevant circumstances include the "seriousness of the crime, the competency, experience, and actual participation by counsel, the rationality of the plea bargain' and the pace of the proceedings in the particular criminal court" (Harris, 61 NY2d at 19). Furthermore, "a plea is not rendered invalid merely because the Trial Judge does not enumerate [*4]all the rights to which defendant is entitled or elicit a list of detailed waivers before accepting the plea." (People v Lugo, 168 AD2d 320, 321, [1st Dept. 1990], lv. denied 78 NY2d 969; see also People v Harris, 61 NY2d 9, [1983]).

In each of Defendant's plea allocutions the record shows that the defendant entered a knowing and voluntary plea. When the Defendant entered his February 14, 2004 plea the Defendant had significant prior experience with the Criminal Justice System that included a previous 1983 misdemeanor conviction to the exact same charge by guilty plea, a 1984 felony conviction, also by guilty plea, for which he served probation, and a 1993 felony conviction, again by guilty plea, for which he also served probation. At his arraignment on February 14, 2004, the People offered five days jail; after he spoke with his attorney and made sure that he was pleading guilty to a misdemeanor and not a felony the Defendant accepted the Court's offer of one day of community service (see defendant's exhibit G). Defense counsel stated on the record that he had discussed the adverse immigration consequences of Defendant's plea(Id.). The Defendant completed the community service and returned to court to show proof. The Court finds that the Defendant entered a knowing, voluntary and intelligent plea on docket 2004NY012357.

The Defendant entered his January 28, 2007, guilty plea on his third court appearance after arraignment. The People offered 30 days jail and alleged that the Defendant possessed felony weight cocaine. The Defendant, through his attorney, brought to the Court's attention that his mother was sick and that he planned to visit her in the Dominican Republic. The record shows that the defendant discussed the Court's offer of community service with a jail alternative before accepting the bargain. Furthermore, the Defendant received an advantageous bargain and a sentence of community service rather than the People's recommendation of 30 days in jail (see People v. Ford, 86 NY2d 397 [1995]; People v. Boodhoo, 191 AD2d 448 [2d Dept. 1993]; People v. Mayes, 133 AD2d 905 [3rd Dept. 1987]). The Court finds that the Defendant entered a knowingly, voluntarily and intelligent plea bargain on docket 2007NY055864.

The Right to Effective Assistance of Counsel

The right to effective assistance of counsel is guaranteed by the Federal and State Constitutions (United States Constitution, 6th Amendment; New York Constitution, Article I, § 6). Counsel must be appointed for any indigent defendant charged with a serious crime (see Gideon v. Wainwright, 372 U.S. 335 [1963]). Under the Federal Constitution, a guilty plea will be upheld as valid when it represents a voluntary and intelligent choice among alternative courses of action open to a defendant (Hill v Lockhart, 474 U.S. 52, 56 [1985]). A defendant who seeks to challenge the voluntary and intelligent character of a guilty plea on the ground of ineffective assistance of counsel must establish that defense counsel's representation fell below an objective standard of reasonableness and there is a reasonable probability that, but for counsel's errors, the defendant would not have pleaded guilty (see Strickland v Washington, 466 U.S. 668 [1984]; Hill, 474 U.S. at 58-59). As a matter of New York State constitutional law, a defendant must receive "meaningful representation" (see People v Henry, 95 NY2d 563, 565 [2000]; People v Benevento, 91 NY2d 708, 713 [1998]; People v Baldi, 54 NY2d 137, 147 [1981] aff'd, 96 AD2d 212 [1983] lv. denied, 61 NY2d 761 [1984]).

[*5]Ineffective Assistance of Counsel under the Federal Standard

In Padilla (130 S.Ct. At 1483) the United States Supreme Court held that the Sixth Amendment mandates that criminal defense attorneys give correct advice to their noncitizen clients concerning the risk of adverse immigration consequences, particularly deportation, as a consequence of a conviction. The Defendant argues Padilla mandates vacating his guilty pleas.

The first issue presented by Defendant's motions is whether the rule of law announced in Padilla applies retroactively to a collateral challenge to a guilty plea. Initially, the Court must determine whether the rule announced in Padilla is a new rule of law. While an old rule applies both on direct appeal and collateral review, a new rule is generally applicable only to cases still on direct appeal (Griffith v. Kentucky, 479 U.S. 314 [1987]). Because this Court finds that Padilla merely applied the old rule described in Strickland to a specific set of facts, Defendant's Padilla claim applies on collateral review pursuant to Criminal Procedure Law § 440.

It is true that controlling precedent in New York and many other jurisdictions previously labeled immigration consequences as collateral matters to a criminal conviction and therefore lack of advice regarding these was not generally cognizable under a claim of ineffective assistance of counsel (see People v. Ford, 86 NY2d 397 [1995]; Kentucky v. Padilla, 130 S. Ct. 1473, 1481 [2010], see collected cases footnote 9). However, the existence of conflicting authority does not resolve whether the Supreme Court announced a new rule (see Wright v. West, 505 U.S. 277 [1992]). The Supreme Court stated that "[i]f the rule in question is one which of necessity requires a case-by-case examination of the evidence, then we can tolerate a number of specific applications without saying that those applications themselves create a new rule." (West, 505 U.S. at 308-09). Furthermore, when the Supreme Court applies an established rule of law in a new way based on the specific facts of a case, it generally does not create a new rule (see Stringer v. Black, 503 U.S. 222 [1992]). This Court finds that the Supreme Court merely applied Strickland's well-established test to determine whether Padilla's counsel's performance was objectively reasonable and therefore did not announce a new rule of law (see Teague v. Lane, 489 U.S. 288 [1989]; Butler v. McKellar, 494 U.S. 407 [1990]; People v. Eastman, 85 NY2d 265 [1995]).[FN3]

In Padilla the Supreme Court reiterated their rejection of the distinction between collateral and direct consequences to define the scope of effective assistance of counsel and pointed out that for at least 15 years prevailing professional norms have required that defense counsel advise their clients regarding deportation and discuss other possible immigration consequences (see Padilla, 130 S.Ct. at 1482-1483). The Supreme Court clearly understood its holding in Padilla would apply retroactively when it stated that it had "given serious consideration" to the argument that its ruling would open the "floodgates" to new litigation challenging prior guilty pleas. Id. at 1484-85. The Supreme Court minimized the "floodgates" [*6]concern by recognizing that guilty pleas are advantageous bargains and that, under the second prong of Strickland, a petitioner must "convince the court that a decision to reject the plea bargian would have been rational under the circumstances." (see Padilla, 130 S.Ct. a 1485, quoting Roe v. Flores-Ortega, 528 U.S. 470 [2000]). Although Padilla overruled some precedent, and the Supreme Court's statement that it "now hold[s] that counsel must inform her client whether his plea carries a risk of deportation," Padilla, 130 S. Ct. at 1486, may be interpreted to indicate that the Court intended to create a new rule, the legal analysis throughout Padilla employed the long established standard set forth in Strickland and not a new rule of law.

In Padilla, the Supreme Court held that an attorney must advise his or her client regarding the risk of deportation (Padilla, 130 S. Ct. at 1482-3). At the February 14, 2004 plea, Defendant's attorney, of the New York County Defender Services, did exactly what Padilla requires as he stated on the record that he had discussed with the Defendant the adverse immigration consequences of his plea. Because this record contradicts Defendant's subsequent self-serving allegations that his attorney did not advise him regarding immigration consequences, this Court finds that the Defendant has not met his burden under the first prong of Strickland as required by Padilla. Defendant's motion to vacate his conviction due to ineffective assistance of counsel under Strickland on docket 2004NY012357 is denied.

The Court file on docket 2007NY055864 shows that the Defendant was again represented by the New York County Defender Services beginning at his arraignment and for each of his three subsequent court appearances. While this second attorney did not affirmatively state on the record that she had advised the defendant as to possible immigration consequences the absence of such a statement does not mean his defense counsel failed to advise him and does not satisfy Defendant's burden. In Padilla, the Supreme Court pointed out that for at least the last 15 years, prevailing professional norms have required that defense counsel advise their clients regarding deportation and discuss other possible immigration consequences, and standard manuals distributed to staff attorneys at indigent defender organizations train them to do so (see Padilla, 130 S.Ct. at 1482-1483). Considering Defendant's extensive criminal history, and that his prior attorney, from the same institutional defense organization, stated on the record at his 2004 guilty plea to the same crime that he did advise as to immigration consequences, this Court finds that the Defendant has not met the first prong of the Strickland analysis (see Strickland v Washington, 466 U.S. 668 [1984]; Hill v. Lockhart, 474 U.S. 52 [1985]). Defendant's motion to vacate his conviction due to ineffective assistance of counsel under Strickland on docket 2007NY055864 is denied.

Ineffective Assistance of Counsel under the New York Standard

In New York, a defense attorney's performance will not be considered ineffective "[s]o long as the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation" (see Baldi, 54 NY2d at 147). Perfect representation is not required (see People v. Benevento, 91 NY2d 708 [1998]; People v. Modica, 64 NY2d 828, 829 [1985] [finding counsel's mistake at defendant's guilty plea regarding minimum sentence did not rise to the level of ineffective assistance]; People v. Bryant, 1 AD3d 966 [4th Dept 2003] [affirming judgment upon guilty plea and finding counsel's failure to inform the People of defendant's wish to testify before the grand jury did not amount to ineffective assistance]). "In the context of a guilty plea, a defendant has [*7]been afforded meaningful representation when he or she receives an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel." (see People v. Ford, 86 NY2d 397, 404 [1995] citing People v Boodhoo, 191 AD2d 448, 449 [2nd Dept 1993]). The Court of Appeals has held that even an affirmative misstatement by defense counsel concerning the immigration consequences of a guilty plea may not rise to the level of ineffective assistance of counsel (see People v. McDonald, 1 NY3d 109 [2003] [denying ineffective assistance of counsel claim raised pursuant to Criminal Procedure Law § 440.10 when defendant failed to make a prima facie showing of prejudice]). The Defendant's extensive and consistent criminal history of pleading guilty to drug related offenses, coupled with his active participation in the plea bargains negotiated in these two cases, combined with his attorney's statement on February 14, 2004, that he had in fact advised Mr. Ramirez as to the possible immigration consequences of that plea, belie his claim that he was never informed by a court or any of his attorneys of the immigration consequences of his pleas and undermine any claim of prejudice (see People v. Caufield, 57 AD3d 796 [2d Dept. 2008] lv. denied 12 NY3d 781; People v. Braun, 167 AD2d 164 [1st Dept. 1990] lv. denied 77 NY2d 841). Defendant's motions to vacate his convictions due to ineffective assistance of counsel under New York's standard on dockets 2007NY055864 and 2004NY012357 are denied.

Request for a Hearing

Defendant's motion for a hearing on these matters is also denied. A judgment of conviction is presumed valid, and the party challenging its validity has the burden of coming forward with contrary substantial evidence to create an issue of fact (see People v. Session, 34 NY2d 254, 255-256 [1974] citing People v. Richetti, 302 NY 290, 298 [1951]). Bare allegations not supported by the record are insufficient to carry this burden and a court may deny a motion to vacate a judgment without a hearing (see People v. White, 309 NY 636 [1956]; cf People v. McKenzie, 224 AD2d 173 [1st Dept 1996] [reversing trial court's denial without a hearing of defendant's Criminal Procedure Law § 440 motion to vacate his guilty plea because there was independent evidence in the record to support defendant's assertion that the plea was induced by incorrect advice from counsel concerning whether defendant's statutory speedy trial claim would survive his guilty plea]). On both of these dockets, the Defendant received an advantageous plea bargain. On the first of his two cases the record shows he was in fact advised by his attorney as to immigration consequences. Under these circumstances, the allegations that the defendant was not advised by the Court or his attorney of possible adverse immigration consequences are insufficient to warrant that this Court vacate either conviction or grant a hearing (see People v. Tinsley, 35 NY2d 926 [1974]; People v. Hanley, 255 AD2d 837 [3d Dept 1998], leave denied 92 NY2d 1049 ). Defendant's motions for a hearing on his claims with respect to dockets 2004NY012357 and 2007NY055864 are denied.

Accordingly defendant's motions are denied.

Dated:New York, New York

September 17, 2010

________________________

Anthony J. Ferrara

Judge of the Criminal Court Footnotes

Footnote 1:These three convictions and the two convictions underlying these motions are listed in Defendant's Notice to Appear for removal proceeding (see defendant's exhibit G). Defendant points out in his motions that any deportation based on these three prior convictions is not mandatory because the convictions occurred prior to the 1996 changes in the Immigration and Nationality Act.

Footnote 2: CPL § 220.50[7] was not in effect at the time of Defendant's felony pleas in 1984 and 1993.

Footnote 3: This Court recognizes that there is conflict among courts as to whether Padilla announced a new rule (see People v. Kabre, 2010 NY Slip Op 20291 [Crim. Ct. New York County, 2010] [finding Padilla did announce a new rule but that it does not apply retroactively on collateral review]; cf. People v. Bennett, 903 NYS2d 696, 2010 NY Slip Op 20194 [Crim Ct, Bronx County, 2010] [finding Padilla did not announce a new rule]; United States v. Hubenig, 2010 U.S. Dist. LEXIS 80179 [E.D. Cal. 2010]).