People v Perez

[*1] People v Perez 2010 NY Slip Op 52069(U) [29 Misc 3d 1228(A)] Decided on December 1, 2010 Criminal Court Of The City Of New York, New York County Kotler, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 1, 2010
Criminal Court of the City of New York, New York County

The People of the State of New York, Plaintiff,

against

Miguel Perez, Defendant.



95N078103



Appearances are:

Defendant:

David J. Goldstein, Esq.

Goldstein & Weinstein

888 Grand Concourse

Bronx, NY 10451

(718) 665-9000

Lynn R. Kotler, J.

The defendant, Miguel Perez, moves to vacate judgment pursuant to CPL § 440.10 (1) (h). The People have not submitted any opposition to the motion.

The defendant was charged with Criminal Possession of a Controlled Substance in the Third Degree in violation of PL § 220.16 [1] and Criminal Possession of a Controlled Substance in the Fifth Degree in violation of PL § 220.06 [5]. On January 22, 1996, a judgment was rendered convicting the defendant, upon his guilty plea, of Criminal Possession of a Controlled Substance in violation of PL § 220.03 and sentencing him to a one-year conditional discharge and four days of community service. The defendant did not file a direct appeal.

The defendant moves to vacate his conviction on the ground that he was given ineffective assistance of counsel because his attorney, Andres M. Aranda, Esq., did not inform him of the immigration consequences of his plea nor the rights he would be waiving if he pled guilty. The motion must be denied for at least the reasons that follow.

Due process requires that before accepting a defendant's plea of guilty, the Court must determine whether the defendant's waiver of his rights is voluntary, knowing, and intelligent (Brady v. United States, 397 US 742 [1970]). In New York, the defendant must understand the plea and its consequences, and that the plea was an intelligent and voluntary choice (People v. Ford, 86 NY2d 397 [1995]; People v. Moissett, 76 NY2d 909 [1990]; People v. Harris, 61 NY2d 9 [1983]). Further, the Court must inform the defendant of certain rights and ask the defendant whether he waives those rights once he has been informed of them in the first instance (Boykin v. Alabama, 395 US 238). These rights include the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront his accusers (id). [*2]

Under CPL § 440.10 (1) (h), a judgment of conviction should be vacated if it "was obtained in violation of a right of the defendant under the constitution of this state or of the United States." CPL § 440.10(1)(h). However, a motion pursuant to CPL § 440.10 is not a substitute vehicle, to be used by a defendant for grounds that should have been raised on direct appeal (see People v. Cooks, 67 NY2d 100 [1986]).

Before deciding whether to plead guilty, a defendant is entitled to "the effective assistance of competent counsel" (Strickland v. Washington, 466 US 668 [1984]; McMann v. Richardson, 397 US 759 [1970]). The US Supreme Court has held that the Sixth Amendment requires criminal defense attorneys to advise their noncitizen clients if there is a risk of deportation as a consequence of a conviction (Padilla v. Kentucky, 130 SCt 1473, 1482 [2010]). This Court held in People v. Bennett (28 Misc 3d 575 [2010]) that the rule in Padilla should be applied retroactively to convictions that became final before Padilla was rendered.

The defendant allegedly claims that Attorney Aranda failed to, inter alia, advise him that his guilty plea could subject him to being deported from the United States. The Court uses the word "allegedly" to describe the affidavit because the affidavit has not been properly notarized. The defendant also claims to have been served with a deportation notice, and is currently "involved in a deportation proceeding", but has failed to provide proof of the notice or any other proof that his 1996 conviction is the basis for a pending deportation proceeding.

Attorney Arranda states in his affirmation that although he represented the defendant when the defendant entered his guilty plea, he has no present recollection as to whether or not he discussed the immigration consequences of a guilty plea with the defendant prior to the entry thereof. An affidavit by Helen Rubin, the Court Reporter-In-Charge for New York City Criminal Court, has been provided to the court. In that affidavit, Ms. Rubin states that after a diligent search was made, a transcript of the plea minutes is unavailble.

Relying on Padilla, the defendant argues that Attorney Aranda's performance was constitutionally deficient under both the United States and New York Constitutions. This argument is rejected. The Supreme Court's determination in Padilla that the Sixth Amendment requires criminal defense attorneys to advise their noncitizen clients if there is a risk of deportation as a consequence of a conviction (Padilla, 130 SCt 1473, 1482) was based upon the prevailing professional norms of criminal defense practice as framed by the then-existing immigration consequences of a criminal conviction.

While the defendant has not specifically addressed this issue, the court cannot find that a criminal defense attorney's failure to foresee the upcoming changes in immigration law and enforcement in 1996 constitutes ineffective assistance (Padilla, 130 SCt 1473 [a 2002 conviction]; see also Bennett, 28 Misc 3d 575 [a 2005 conviction]). The changes to immigration law and enforcement in 1996 were drastic, to wit, Congress first circumscribed the (judicial recommendation against deportation) provision in the 1952 Immigration and Nationality Act (INA), and in 1990 Congress entirely eliminated it.[FN1] In 1996, [*3]Congress also eliminated the Attorney General's authority to grant discretionary relief from deportation, an authority that had been exercised to prevent the deportation of over 10,000 noncitizens during the 5-year period prior to 1996. Under contemporary law, if a noncitizen has committed a removable offense after the 1996 effective date of these amendments, his removal is practically inevitable but for the possible exercise of limited remnants of equitable discretion vested in the Attorney General to cancel removal for noncitizens convicted of particular classes of offenses" (Padilla, 130 SCt 1473, 1480 [citations omitted]).

It was these changes that "dramatically raised the stakes of a noncitizen's criminal conviction" (Padilla, 130 Sct at 1480) in the immigration context. Therefore, the court cannot conclude that Attorney Arranda's alleged failure to advise the defendant of the immigration consequences of his criminal conviction 1996 was constitutionally deficient under Strickland.

It also bears noting that the defendant has failed to provide proof that this 1996 conviction is the basis for the deportation proceeding he claims to be currently facing. The aforementioned amendments to the INA only became effective September 30, 1996, which was after the defendant's conviction became final. These harsher immigration laws should not be applied retroactively to this defendant's January 22, 1996 conviction (see INS v. St. Cyr, 533 US 289 (2001)].

The defendant's argument that the court had an obligation to advise him of the immigration consequences also fails. The court has no such legal obligation for a misdemeanor conviction (cf. CPL § 220.50 [7]).

The defendant also claims that his attorney provided ineffective assistance because he failed to explain that the defendant "had a right to challenge the search which led to the discovery of the cocaine that I had was alleged to have in my possession." Under CPL § 440.30 (4) (d), the court may deny a motion without conducting a hearing if the defendant's allegations of fact essential to support the motion are made solely by the defendant and are unsupported by any other affidavit or evidence, and under these and all other circumstances, there is no reasonable possibility that such allegation is true. The court finds that based on this record, the defendant did not raise a material issue of fact as to the effectiveness of counsel, and therefore is not entitled to a hearing on this issue. This Court finds that contrary to the defendant's allegations, he was represented by competent counsel when he entered his plea. In addition, Attorney Arranda, negotiated a favorable plea with a minimal penalty imposed by the Court.

For at least these reasons, the defendant's motion to vacate is denied in its entirety.

Any requests for relief not expressly addressed herein have nonetheless been [*4]considered and are hereby denied.

This constitutes the decision and order of the Court.

Dated:December 1, 2010So Ordered:

New York, New York

______________________

Hon. Lynn R. Kotler, J.C.C. Footnotes

Footnote 1: The judicial recommendation against deportation ("JRAD") procedure empowered a federal or state sentencing judge to decide whether a particular conviction should be "disregarded as a basis for deportation" and thereby could prevent deportation (Padilla 130 Sct at 1480 citing Janvier v. United States, 793 F2d 449, 452 [2d Cir 1986]).