People v Wong

[*1] People v Wong 2010 NY Slip Op 52052(U) [29 Misc 3d 1227(A)] Decided on November 23, 2010 Criminal Court Of The City Of New York, Queens County Koenderman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 23, 2010
Criminal Court of the City of New York, Queens County

The People of the State of New York

against

Joey Wong, Defendant



2006QN025879



Attorney for defendant:

Michael Kohler

Attorney for the People:

ADA Danielle Hartman

Elisa S. Koenderman, J.

The defendant, Joey Wong, moves pursuant to Criminal Procedure Law ["CPL"] § 440.10(h) to vacate his judgment of conviction of Criminal Possession of Marihuana in the Fifth Degree, Penal Law ["PL"] § 221.10(1) on the ground that it was obtained in violation of his right to the effective assistance of counsel. Because upon consideration of its merits, the defendant's motion fails to contain sworn allegations which substantiate all of the essential facts, it is denied without a hearing (see CPL § 440.30[4][b]).

On May 14, 2006, the defendant pleaded guilty to the misdemeanor offense of Criminal Possession of Marihuana in the Fifth Degree, PL § 221.10(1). The following is the pertinent part of the defendant's allocution:

The Court: What's your true name?

The Defendant: Joey Wong. The Court: Is Mr. Schwed, the gentleman beside you, your lawyer?

The Defendant: Yes.

The Court: Did you discuss this matter fully with him?

The Defendant: Yes. The Court: Are you satisfied with the representation that you received from him up until this moment?

The Defendant: Yes. [*2] The Court: Do you wish to plead guilty to a violation of section 221.10 of the [Penal] Law, Marihuana in the Fifth Degree in full satisfaction of all the charges that are now before this Court. Is that what you wish to do?

The Defendant: Yes. The Court: Do you realize that by pleading guilty you give up various rights? You give up the right to have this matter tried publically before a judge of this court and at which time the prosecutor has to convince the judge that you are guilty of the charges beyond a reasonable doubt?

The Defendant: Yes, I do. The Court: In addition, at such trial you would have a right to cross-examine and challenge the People's witnesses. Do you understand that?

The Defendant: Yes. The Court: In addition, at the trial you have the right to testify on your behalf, if you wanted to. If you did not wish to testify [no] one could make you testify.

The Defendant: Yes. The Court: Do you further realize by pleading guilty, what you are doing is testifying against yourself?

The Defendant: Yes.

The Court: Is that what you wish to do?

The Defendant: Yes. The Court: Has anybody forced, threatened or coerced you to plead guilty?

The Defendant: No.

The Court: Are you doing this of your own free will?

The Defendant: Yes. The Court: By pleading guilty tell me what you did on or about May 13, 2006, around 10 p.m., at the intersection of 35th Avenue and 9th Street in Queens County, which constitutes the crime of Criminal Possession of Marihuana in the Fifth Degree. The Defendant: Yes, I had marihuana on myself.

The Court: Did you have it in the center console of the car?

The Defendant: Yes.

On April 21, 2009, the United States Department of Homeland Security ("Homeland Security") initiated removal proceedings against the defendant on the ground that he is "an alien present in the United States who has not been admitted or paroled." The Notice to Appear filed against the defendant by Homeland Security alleges that he "is not a citizen or national of the United States" and that he is a native and citizen of Nicaragua who arrived in the United States at an unknown place and time[FN1]. Additionally, the Notice to Appear alleges that the defendant was convicted of Criminal Possession of Marihuana in the Fifth Degree in that he is an alien "who has been convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of . . . any law or regulation of a State, the United States, or a foreign country relating to a controlled substance." [*3]

The defendant now asserts that he "was never informed by either assigned counsel or the Court of the potential devastating consequences the plea/conviction would have on his immigration status and ability to remain in the United States." Relying on Padilla v Kentucky, 130 S Ct 1473, 1478 (2010), the defendant argues that "the failure to advise, notify or warn [him] of the potential devastating immigration consequences of his plea undermined his basic constitutional right to counsel" and that his plea "therefore cannot be allowed to stand."

In Padilla, the defendant, a native of Honduras who was a lawful permanent resident of the United States for over forty years, faced deportation after pleading guilty to transporting a large amount of marihuana in his tractor-trailer in Kentucky (Padilla, 130 S Ct at 1477). Padilla claimed that his counsel not only failed to advise him of the deportation consequence of his plea but falsely assured him that " he did not have to worry about immigration status since he had been in the country so long'" (id. at 1478). Padilla alleged that he would not have pleaded guilty and would have insisted on going to trial had he not received this incorrect advice (id.). The Kentucky Supreme Court denied Padilla post-conviction relief, ruling that the Sixth Amendment guarantee of effective assistance of counsel does not extend to erroneous advice about the collateral consequence of deportation (id.). The Supreme Court granted certiorari to decide whether, as a matter of federal law, Padilla's counsel had an obligation to advise him that his guilty plea would result in removal from the United States (id.). Reasoning that "deportation is an integral part - indeed, sometimes the most important part - of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes" (id. at 1480), the Supreme Court concluded that the "collateral versus direct distinction is . . . ill-suited" to evaluating an ineffective assistance of counsel claim concerning advice about the risk of deportation (id.at 1482). Observing that "the consequences of Padilla's plea could easily be determined from reading the removal statute[FN2], his deportation was presumptively mandatory and his counsel's advice was incorrect" (id. at 1483), the Supreme Court held that "constitutionally competent counsel would have advised [Padilla] that his conviction for drug distribution made him subject to automatic deportation" (id. at 1478).

The Supreme Court analyzed Padilla's claim under the two-pronged test enumerated in Strickland v Washington, 466 US 668 (1984) (id. at 1482). Under Strickland, to decide an issue of ineffective assistance of counsel, the court must first determine whether counsel's representation "fell below an objective standard of reasonableness" (Strickland, 466 US at 688) and if so, whether "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different" (id. at 694; see Padilla, 130 S Ct at 1482-1484; see also People v McDonald, 1 NY3d 109, 113-114 [2003]). Accepting Padilla's allegations as true, the Supreme Court found that he had sufficiently alleged that his counsel was constitutionally deficient but remanded the case for further proceedings to determine whether Padilla could demonstrate that he was prejudiced as a result (id.). [*4]

In New York State, a defendant who seeks to challenge the voluntary and intelligent character of his guilty plea on the ground of ineffective assistance of counsel likewise must establish that his attorney's advice was not within the standard set forth in Strickland (see McDonald, 1 NY3d at 113). A defendant therefore must show that his counsel's performance fell below an objective standard of reasonableness and that "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" (id.). Here, the defendant has failed to satisfy the first prong of the Strickland test.

Apart from his own self-serving declarations, the defendant has not submitted sworn allegations of fact which substantiate that his attorney erroneously failed to advise him about the adverse immigration consequences of his guilty plea (see CPL § 440.30[4][b]). The defendant concedes in his affidavit that he discussed the plea and its consequences "at great lengths" (sic) with his attorney. Additionally, at the time he pleaded guilty, the defendant acknowledged that he had discussed the matter fully with his attorney. Notably, however, the defendant does not assert in his motion papers that he informed his attorney that he is a non-citizen. Despite the defendant's contention, the fact that the People served "Vienna Convention Notice" on the defendant at his arraignment does not imply that the defendant was a non-citizen[FN3]. Vienna Convention Notice is uniformly served on every defendant at arraignment in Queens County. The defendant does not allege that he responded to the notice by informing the District Attorney that he was a foreign national. In fact, the New York City Police Department Omniform arrest report submitted by the defendant with his motion, which contains pedigree information provided by the defendant, indicates that the defendant represented to the police that he was a United States citizen. The reasonable inference to be drawn from the all of the circumstances, including the lack of evidence to the contrary, is that the defendant also told his attorney that he was a United States citizen, or at least never told him that he was a non-citizen. Indeed, given that the defendant entered the country illegally twenty years prior, it makes sense that he would protect the secrecy of his status, even from his attorney, out of fear that he would be discovered and deported. As distinct from Padilla, where the defendant informed his counsel of his status and solicited his advice, there is no basis to conclude in the instant case that the defendant's attorney knew or should have known that the defendant was a non-citizen. If the defendant's attorney had no reason to believe that the defendant was a non-citizen, then he had no obligation to address immigration consequences with him and his failure to do so cannot be considered objectively unreasonable (see Strickland, 466 USat 688; McDonald, 1 NY3d at 113).

Furthermore, contrary to the defendant's claim that neither his "assigned counsel nor the Court" informed him of the "potential devastating consequences" of his plea, Padilla holds only that "advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel" (Padilla, S Ct at 1482) and opines that at a minimum, depending [*5]upon whether the risk of deportation is clear and certain in a particular case, constitutionally competent counsel should advise a non-citizen defendant that pleading guilty may have adverse immigration consequences (id. at 1483). It does not impose upon the court any obligation to inform a non-citizen defendant about adverse immigration consequences nor declare that the knowing, intelligent and voluntary character of a plea is vitiated by the court's failure to advise a non-citizen defendant regarding the risk of deportation.

Here, the record of the defendant's allocution reveals that he entered his plea knowingly, intelligently and voluntarily (see Boykin v Alabama, 395 US 238, 242 [1969]; People v Harris, 61 NY2d 9, 20 [1983]). The defendant agreed that he had discussed pleading guilty fully with his attorney and he confirmed that he was satisfied with his attorney's representation. He acknowledged that he was pleading guilty to the crime of Criminal Possession of Marihuana in the First Degree and admitted that he possessed marihuana in his vehicle. Finally, he averred that he understood that by pleading guilty he was giving up his right to a public trial before a judge at which the People would have the burden of proving his guilt beyond a reasonable doubt; his right to confront and cross-examine the witnesses against him; and his right to remain silent and not incriminate himself.

Because the defendant's motion does not contain sworn allegations which substantiate that his attorney erroneously failed to advise him about the adverse immigration consequences of his guilty plea, the defendant has "failed to establish a threshold issue of ineffective assistance" (see People v Ozuna, 7 NY3d 913, 915 [2006] [defendant's motion to vacate judgment based upon his counsel's failure to call defendant's father as a witness at trial properly denied without a hearing where defendant neither submitted an affidavit from his father corroborating his testimony nor explained why he did not do so]). Moreover, the defendant's claim is made solely by him, is unsupported by any other evidence, and under all of the circumstances, is not reasonably likely to be true (see CPL § 440.30[4][d]; see also People v Taylor, 211 AD2d 603 [1st Dept 1995]; People v Smiley, 67 AD3d 713, 714 [2d Dept 2009] [defendant's motion to vacate judgment properly denied without a hearing where defendant's self-serving allegations are "not supported by any other affidavit or evidence, and under all the circumstances attending the case, there is no reasonable possibility that such allegations are true"]; People v Passino, 25 AD3d 817, 818-819 [3rd Dept 2006] [defendant's motion to vacate judgment on the ground that his counsel provided inadequate representation properly denied where "the sole proof submitted in support of defendant's motion was his own affidavit, and it contained only conclusory allegations, most of which were contradicted by his plea allocution"]; People v Woodard, 23 AD3d 771, 772 [3rd Dept 2005] [defendant's motion to vacate judgment properly denied without a hearing where the "defendant's affidavit, the sole proof submitted in support of his motion, contained only conclusory generic allegations"]; People v Sayles, 17 AD3d 924, 924-925 [3rd Dept 2005] [defendant's motion to vacate judgment properly denied without a hearing where "defendant's self-serving and conclusory affidavit is directly contradicted by the record evidence . . . including his unequivocal affirmations to the court during his plea allocution that he was entering the plea of his own free will, fully understood its consequences, had not been pressured by anyone to plead guilty and was satisfied with the services of counsel"]; People v Kennedy, 46 AD3d 1099, 1101 [3rd Dept 2007]; see also People v Toal, 260 AD2d 512 [2d Dept 1999]). Accordingly, the defendant's motion to vacate judgment is denied without a hearing. [*6]

This constitutes the decision and order of the Court.

Dated:November 23, 2010

Queens, New York

_________________________

Elisa S. Koenderman, JCC Footnotes

Footnote 1: The defendant admits in his motion papers that he entered the United States illegally with his family in 1986 when he was six years old.

Footnote 2: Padilla was subject to deportation pursuant to 8 USC § 1227(a)(2)(B)(i), which provides that "any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States or a foreign country relating to a controlled substance . . . other than a single offense involving possession for one's own use of 30 grams or less of marijuana, is deportable."

Footnote 3: Vienna Convention Notice is notice pursuant to the Vienna Convention on Consular Relations that any non-United States citizen arrested is entitled to have his country's Consular Representative to the United States notified. The form notice asks a defendant who is not a Unites States citizen to disclose his country of citizenship and indicate whether he wants his consular representative notified by filling out the form and returning it to the District Attorney's Office.