People v Sanchez

[*1] People v Sanchez 2010 NY Slip Op 51952(U) [29 Misc 3d 1222(A)] Decided on November 10, 2010 Supreme Court, Queens County Knopf, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 10, 2010
Supreme Court, Queens County

The People of the State of New York

against

Juan Carlos Sanchez, Defendant



757/91



The defendant is represented by Robert Didio, Esq.

The People are represented by Assistant District Attorney Daniel Bresnahan of the Queens District Attorney's Office.

Stephen A. Knopf, J.

The defendant, Juan Carlos Sanchez, has filed a motion with this Court, seeking an order of this Court vacating his judgment of conviction pursuant to CPL 440.10. The defendant argues that he was provided ineffective assistance of counsel because his attorney failed to inform him of the immigration consequences of his guilty plea. Additionally, the defendant claims that his plea was involuntary and not knowingly entered into because the Court failed to verify his citizenship status and failed to warn him of the immigration consequences of his plea. The People disagree.

FINDINGS OF FACT

This indictment arose out of an incident that took place on February 2, 1991, at approximately 9:45pm, in the vicinity of 47-05 45th Street, in Queens. On that date and time, the defendant approached Mr. Morales, who knew the defendant by first name and demanded the parka he was wearing. When Mr. Morales attempted to push the defendant away, the defendant began to repeatedly punch Mr. Morales in the face. An unapprehended male joined the defendant, and as the defendant held Mr. Morales, the unknown male slashed Mr. Morales in the face and coat. Mr. Morales was able to break away. Shortly thereafter, about a block away from the incident, Mr. Morales was able to point the defendant out to police, who then arrested the defendant.

As a result of this incident, the defendant was indicted for [*2]the crimes of assault in the first degree, attempted robbery in the first degree, attempted robbery in the second degree, assault in the second degree and criminal possession of a weapon in the fourth degree.

On March 3, 1992, prior to trial, the defendant pled guilty before the Hon. Yorka Linakis, J.S.C. to each count in the indictment, with a promise of one and one-half to four and one-half years incarceration, the minimum sentence permitted by law on the top counts of assault in the first degree and attempted robbery in the first degree. The defendant allocuted to committing each and every offense charged. He waived his right to appeal.

On April 3, 1992, before the same court, the defendant was sentenced to the promised concurrent prison terms of one and one half to four and one half years on the assault in the first degree and attempted robbery in the first degree charges, one to three years on the assault in the second degree and attempted robbery in the second degree charges and one year on the criminal possession of a weapon in the fourth degree charge. The defendant did not receive youthful offender treatment. The defendant did not appeal this conviction.

The defendant submits he was born in England, (reflected in his 1992 pre-sentence report)and is a citizen of Spain. He maintains he is not a U.S. citizen. On May 11, 2010, the defendant was served with a Notice to Appear before an immigration judge of the United States Department of Justice for a removal hearing. The defendant asserts he was advised that he is subject to mandatory deportation. The defendant is currently in the custody of the Department of Homeland Security. The defendant is married and is a father of two children.

CONCLUSIONS OF LAW

CPL 440.10 governs the statutory mandates of vacating a judgment of conviction. It specifically provides, in pertinent part that: 1. At any time after the entry of a judgment, the court in which it was entered may, upon motion of the defendant, vacate such judgment upon the ground that:...(h)The judgment was obtained in violation of a right of the defendant under the constitution of this state or of the United States...2. ...[T]he court must deny a motion to vacate a judgment when:...(c)Although sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's unjustifiable failure to take or perfect an appeal during the prescribed period or to his unjustifiable failure to raise such ground or issue upon an appeal actually perfected [*3]by him; ...

CPL 440.30 governs the statutory mandates whereby a court sets aside a sentence. In pertinent part that: 1. A motion to vacate a judgment pursuant to section 440.10... must be made in writing and upon reasonable notice to the people. Upon the motion, a defendant who is in a position adequately to raise more than one ground should raise every such ground upon which he intends to challenge the judgment... If the motion is based upon the existence or occurrence of facts, the motion papers must contain sworn allegations thereof, whether by the defendant or by another person or persons. Such sworn allegations may be based upon personal knowledge of the affiant or upon information and belief, provided that in the latter event the affiant must state the sources of such information and the grounds of such belief. The defendant may further submit documentary evidence or information supporting or tending to support the allegations of the moving papers. The people may file with the court, and in such case must serve a copy thereof upon the defendant or his counsel, if any, an answer denying or admitting any or all of the allegations of the motion papers, and may further submit documentary evidence or information refuting or tending to refute such allegations. After all papers of both parties have been filed, and after all documentary evidence or information, if any, has been submitted, the court must consider the same for the purpose of ascertaining whether the motion is determinable without a hearing to resolve questions of fact. ...4. Upon considering the merits of the motion, the court may deny it without conducting a hearing if:

(a) The moving papers do not allege any ground constitutinglegal basis for the motion; or (b) The motion is based upon the existence or occurrence of facts and the moving papers do not contain sworn allegations substantiating or tending to substantiate all the essential facts, as required by subdivision one; or ...(d) An allegation of fact essential to support the motion (I) is contradicted by a court or other official document, or is made solely by the defendant 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.

Criminal Procedure Law 220.50, raised by defendant in his application, describes the procedure by where a defendant may enter into a plea of guilty. Section 7, effective June 15,1995 provide in relevant part: [*4] "Prior to accepting a defendant's plea of guilty to a court or courts of an indictment... the court must advise the defendant on the record, that if the defendant is not a citizen of the United States, the defendant's plea of guilty and the court's acceptance thereof may result in the defendant's deportation, exclusion from admission to the United States or denial of naturalization pursuant to the laws of the United States. Where the plea of guilty is to a count or counts of an indictment charging a felony offense other than a violent felony offense as defined in section 70.02 of the penal law or an A-I felony offense other than an A-I felony as defined in article two hundred twenty of the penal law, the court must also, prior to accepting such plea, advise the defendant that, if the defendant is not a citizen of the United States and is or becomes the subject of a final order of deportation issued by the United States Immigration and Naturalization Service, the defendant may be paroled to the custody of the Immigration and Naturalization Service for deportation purposes at any time subsequent to the commencement of any indeterminate or determinate prison sentence imposed as a result of the defendant's plea. The failure to advise the defendant pursuant to this subdivision shall not be deemed to affect the voluntariness of a 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, exclusion or denial of naturalization".

In reviewing the defendant's claim of ineffective assistance of counsel, this Court has considered the defendant's motion and reply, the defendant's affidavit, the defendant's plea minutes, the defendant's pre-sentence report, the defendant's sentencing minutes, documents related to the defendant's removal proceeding, the People's response, and the defendant's criminal history.

It is well-settled that a motion to vacate a judgment of conviction should not be "...employed as a substitute for direct appeal when defendant was in a position to raise an issue on appeal... or could have readily raised it on appeal but failed to do so...". People v Cooks, 67 NY2d 100, 103 (1986).

Indeed, even through defendant waived his right to appeal, a involuntary claim that a plea is involuntary could have been raised on appeal. See, eg, People v Murray, 2 AD3d 1160,1161 (3d Dept 2003). A review of the plea and sentencing minutes reflect that the court did not advise the defendant of the immigration consequences of his plea. Here, sufficient facts appear in the record to permit adequate review of this claim. As such, the defendant could have raised this issue in a direct appeal. The defendant could have raised this claim on direct appeal. [*5]

This Court also notes that the defendant's claim that his plea was involuntary is supported by his own self-serving affidavit alone. No attorney's affidavit or other documentation is provided. Also, the defendant's claim is over 18 years old insofar as the defendant pled guilty in 1992.

While a claim without an attorney's affidavit does not render such a motion fatal, the failure to submit an affidavit from the attorney who represented him or offer an explanation for failure to do so may be considered by a Court in denying such a motion without a hearing. See, eg People v Morales, 58 NY2d 1008 (1983).

As previously noted, the defendant's plea was entered into in 1992. As previously discussed herein, in 1995, section 220.50 (7) of the Criminal Procedure Law was enacted, requiring the court to advise a defendant of any immigration consequences of a plea, if the defendant was not a citizen of the United States. This plea was taken before the statute imposed this duty on the sentencing court. At any rate, even if the statute had been effective at the time of defendant's plea, the very wording of such statute precluded the sort of challenge made by the defendant herein as to the failure of the Court to so advise the defendant.

Based on the defendant's submissions and the status of the law at the time he entered into his plea, this Court cannot find that his plea was defective insofar as the Court did not warn the defendant of immigration consequences. The Court had no obligation to explain potential immigration consequences to the defendant at the time the defendant entered into his plea, or inquire of the defendant as to his citizenship status.

This Court now turns to the defendant's claim he received ineffective assistance of counsel, when counsel at the time of his plea, did not advise him of the potential immigration consequences of his guilty plea.

The right to effective assistance of counsel is a guarantee mandated in the state and federal constitution (NYS Const. Art 1 & 6; US Constit. 6th Amendment) Under federal law, the test for determining the validity of a guilty plea is "... whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant'". Hill v Lockhert, 474 US 52, 56 (1985), citing North Carolina v Alford, 400 US 25,31 (1970). Where, as here, a defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel's advice "... was within the range of competence demanded of attorneys in criminal cases.'" Hill supra at 56.

"When a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of [*6]reasonableness." Strickland v Washington, 466 US 668, 687-688 (1984). "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland at 694

In People v Baldi,54 NY2d 137,147 (1981) the Court of Appeals decided that the right to effective assistance of counsel will have been met: "So long as the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of representation, reveal that the attorney provided meaningful representation, the constitutional requirement will have been met... .""The core of the inquiry is whether defendant received meaningful representation'." People v Beneviento, 91 NY2d 708, 712 (1998).

In Padilla v Kentucky, supra, the United States Supreme Court held that effective assistance of counsel requires that counsel inform his client whether his plea of guilty carries a risk of deportation. In Padilla, the United States Supreme Court specifically stated that: "In sum, we have long recognized that the negotiation of a plea bargain is a critical phase of litigation for purpose of the Sixth Amendment right to effective assistance of counsel. ... The severity of deportation - equivalent of banishment or exile,'... - only underscores how critical it is for counsel to inform [her] non-citizen client that he faces a risk of deportation." Padilla at 1486.

While Padilla holds that an attorney's failure to advise his non-citizen client of the immigration consequences of his guilty plea constituted ineffective assistance of counsel as it fell below an objective standard of reasonableness, there was no clear determination by the United State Supreme Court that Padilla would have retroactive application.

"The threshold issue in determining whether to apply a constitutional rule retroactively is characterization of the rule as new' or old.' It is settled that when a Supreme Court decision applies a well-established constitutional principle to a new circumstance, it is considered to be an application of an old' rule and is always retroactive... . Concern for finality in criminal proceedings however, dictates that new' rules generally not be applied retroactively [u]nless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applied to these cases which became final before the new rules are announced'... ." People v Eastman, 85 NY2d 265, 275 (1995)

Pursuant to Teague v Lane, 489 US 288 (1989),"... new rules of constitutional criminal procedure are applied retroactively in one of two situations: (1)where the new rule places certain kinds of primary, private individual conduct beyond the power of the criminal law making authority to proscribe' or (2)where the [*7]new rule alters a bedrock procedural element of criminal procedure which implicates the fundamental fairness and accuracy of the trial. Eastman at 275, citing Teague at 311-312.

This Court notes that before the Padilla holding, there was no requirement that an attorney advise a client of the potential immigration consequences of a guilty plea. See, People v Ford, 86 NY2d 397 (1995). Under this analysis, the Padilla decision seeks to impose yet a new obligation that must be viewed in the context of more stringent immigration enforcement efforts in this post 9/11 (2001) climate and does not constitute an application or amplification of an old one. Furthermore, the People persuasively argue that deportation was neither an immediate or largely automatic consequence of the guilty plea taken by this defendant in 1992.

Additionally, because the law that existed at the time of the defendant's conviction was contrary to Padilla, the decision of this Court cannot be dictated by this new precedent. Additionally, the Padilla decision does not fall within any exception to the general rule that new rules of criminal procedure will not be applied retroactively. Accordingly, this Court determines that the ruling in Padilla should not apply retroactively to this guilty plea taken in 1992. As such, the defendant's claim that counsel's failure to advise him of the potential immigration consequences of his guilty plea was ineffective performance will not prevail here. In his claim of ineffective assistance of counsel, the defendant has failed to meet the Strickland test; that counsel's performance fell below the objective standard of reasonableness, and that he was prejudiced as a result. Indeed, under Baldi, the New York standard, defendant has likewise failed to demonstrate that counsel failed to provide meaningful representation when the defendant pled guilty. See, Baldi, supra, generally.

Finally, this Court has examined the plea bargain itself. First, this Court observes that nowhere in his papers does the defendant state that he was innocent or indeed, had available defenses to these charged offenses. Second, the defendant obtained a favorable disposition. He received a sentence of incarceration of one and one half to four and one half years, the minimum sentence required by law. See,[former] PL 70.02 (3)(b). By contrast, if the defendant was convicted after trial of the top count, he could have been sentenced to a maximum term of five to fifteen years incarceration. Clearly, the defendant does not recognize in his application that a conviction after trial would have had the same potential deportation consequences, plus a lengthy prison term as well.

In sum, the defendant's motion to vacate his judgment of conviction as his plea was involuntary because the sentencing court did not advise him of potential immigration consequences as [*8]a non-citizen, or inquire of his citizenship status is without merit. The defendant's claim that his attorney was ineffective for failing to advise him of potential immigration consequences, pursuant to Padilla v Kentucky, supra is rejected by this Court. Based upon the totality of the circumstance at the time of representation, defense counsel did not provide ineffective' or less than meaningful' representation. Accordingly, the defendant's motion to vacate his judgment of conviction is denied.

The foregoing constitutes the order, opinion and decision of this court.

_________________________Stephen A. Knopf, J.S.C.