People v Hendricksen

[*1] People v Hendricksen 2011 NY Slip Op 50792(U) Decided on February 3, 2011 Supreme Court, Kings County DiMango, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 3, 2011
Supreme Court, Kings County

The People of the State of New York

against

Pierre Hendricksen,



8361/2001

 

Defense:

Pro-Se

People:

ADA Terry-Ann Llewellyn

Office of the District Attorney

Kings County

Renaissance Plaza

350 Jay Street

Brooklyn, New York 11201-2908

Patricia DiMango, J.

Defendant moves pursuant to Criminal Procedure Law § 440.10 for an order vacating the judgment of conviction, arguing that his plea was not knowing, voluntary and intelligent because his attorney forced him to plead guilty and that his attorney was ineffective in misadvising him about the deportation consequences of his guilty plea. In the alternative, defendant requests that the court conduct an evidentiary hearing to determine the prejudice that resulted from counsel's misadvice.

Defendant, a native and citizen of Haiti, has been a lawful permanent resident of the United States for over twenty years. He now faces deportation after pleading guilty to arson in the second degree (Penal Law § 150.15). The charges stem from allegations that on October 25, 2001, at approximately 8:00 a.m., defendant entered the basement apartment of 8421 Avenue N in Brooklyn and set the apartment on fire. Hendricksen had resided in the apartment with his wife until she obtained an order of protection barring him from entering the home. On the day of the incident, there were tenants inside the building. Moreover, as a result of the fire, five police officers and one firefighter suffered smoke inhalation. A Fire Marshall later determined that the fire was caused by igniting a mattress with matches. Following his arrest, the defendant made four inculpatory statements to the police that he started the fire.

For these acts, defendant was charged with Arson in the Second Degree (Penal Law § [*2]150.15), Burglary in the Second Degree (Penal Law § 140.25[2]), three counts of Reckless Endangerment in the First Degree (Penal Law § 120.25), six counts of Assault in the Third Degree (Penal Law § 120.00[2]), and one count of Criminal Contempt in the Second Degree (Penal Law § 215.50[3]).

On May 8, 2003, defendant pled guilty to arson in the second degree. On July 22, 2003, the court sentenced defendant to a determinate term of imprisonment of ten years followed by five years post-release supervision (Di Mango, J., at plea; McKay, J., at sentence).

Defendant did not appeal the judgment of conviction.

Defendant initially moved to vacate the judgment of his conviction and set aside the sentence alleging that (1) he did not knowingly, intelligently and voluntarily plead guilty; (2) he was denied his right to effective assistance of counsel when his attorney coerced him into pleading guilty; and (3) his sentence was harsh and excessive. On December 10, 2004, the court denied the motion, holding that defendant's claims were procedurally barred pursuant to CPL §§ 440.30(4)(b), (c) and (d). The court further determined that defendant received meaningful representation as counsel had negotiated a beneficial plea bargain in a case in which defendant faced a sentence of twenty-five years. The court denied defendant's excessive sentence claim, noting that it was not properly raised in a CPL § 440.20 motion.

Defendant next petitioned the United States District Court for the Eastern District of New York for habeas corpus relief, again asserting that he did not knowingly, intelligently and voluntarily plead guilty and that his attorney was ineffective. Defendant argued that counsel neglected to inform him that the plea would subject him to deportation and that he would not have pled guilty and would have instead proceeded to trial had he been advised of the deportation consequences. On February 22, 2006, the District Court denied defendant's petition and declined to issue a certificate of appealability (Hendrickson v West, No 05-CV-2549 [EDNY Feb. 22, 2006]), and the United States Court of Appeals for the Second Circuit also refused to grant him a certificate of appealability (Hendrickson v West, No 06-1527 [2d Cir July 13, 2006]).

In July of 2006, the Department of Homeland Security served defendant with a notice of hearing for deportation. On February 27, 2007, an Immigration Judge ordered defendant removed to Haiti on the ground that his conviction for second-degree arson constituted an aggravated felony offense. Defendant's Immigration appeals and motions to reopen have been denied. However, because of the conditions in Haiti caused by the recent earthquake, defendant's removal is currently on hold and he is living in the United States under the supervision of a deportation officer.

Following his removal order, the defendant moved for a second time in New York State Supreme Court to vacate his judgment of conviction and set aside his sentence, alleging that (1) his plea was not knowing, intelligent and voluntary because he was unaware that it included a term of post-release supervision; (2) the plea allocution was insufficient because it did not fully articulate all of the elements of arson in the second degree; (3) his attorney was ineffective because he failed to inform defendant of the different degrees of arson; and (4) his sentence was excessive. On July 20, 2007, the court denied the motion, holding that defendant's claims concerning the court's failure to advise defendant of the imposition of post-release supervision and the legal sufficiency of the plea allocution were procedurally barred pursuant to CPL § 440.10(2)(c). The court also denied defendant's ineffective assistance of counsel claim pursuant to CPL § 440.30(4)(b) and once again determined that defendant's excessive sentence claim was not properly raised in a CPL § 440.20 motion. [*3]

The defendant now moves for the third time to vacate the judgment of conviction, alleging that his plea was not knowing, voluntary and intelligent because counsel pressured him into pleading guilty and that his attorney was ineffective for misadvising him about the deportation consequences of his guilty plea. He claims that he would have gone to trial had he not received this incorrect advice.

Defendant's claim that his plea was not knowing, voluntary and intelligent because his attorney pressured him into pleading guilty is procedurally barred. A court may deny a motion to vacate a judgment when "[t]he ground or issue raised upon the motion was previously determined on the merits upon a prior motion or proceeding in a court of this state, other than an appeal from the judgment, or upon a motion or proceeding in a federal court; unless since the time of such determination there has been a retroactively effective change in the law controlling such issue" (CPL § 440.10[3][b]). As this court has previously determined the merits of defendant's claim, and there has been no retroactive effective change in the law controlling such issue, his claim is barred from this court's review.

Defendant's coercion claim is also contradicted by the court record (CPL § 440.30[4][d]). The record reflects that during the lengthy plea proceedings, and in the presence of an official Creole interpreter, the court thoroughly explained to defendant the plea agreement and sentencing promise. Defendant answered all of the court's questions and confirmed that he was freely taking the plea and that he understood the nature of the charges against him, the possible consequences of the plea and all of the rights that were forfeited as a consequence of the plea. The court further advised him that he was waiving the privilege against self-incrimination, the right to a trial by jury and the right to confront witnesses (see Boykin v Alabama, 395 US 238, 242-244 [1969]). The court instructed that even if the plea affected his immigration status, the plea and sentence would stand. Moreover, the court asked him if anyone had threatened or forced him to plead guilty. Defendant answered "no"and agreed that he was pleading guilty of his own free will. Defendant discussed the matter with his attorney and stated he wanted to plead guilty. Thus, the record of the plea establishes that he was fully advised of the consequences of pleading guilty, understood those consequences, and knowingly, voluntarily and intelligently pled guilty (see People v Blair, 246 AD2d 308, 309 [1st Dept 1998], lv. denied, 91 NY2d 940; People v Garcia, 216 AD2d 36 [1st Dept 1995]).

Ineffective Assistance of Counsel

A defendant in a criminal proceeding is constitutionally entitled to effective assistance of counsel (Strickland v Washington, 466 US 668 [1984], reh. denied, 467 US 1267; People v Linares, 2 NY3d 507, 510 [2004]; see U.S. Const., 6th Amend.; NY Const., art. 1, §6). To prevail on an ineffective assistance of counsel claim under the federal standard, the defendant must be able to show that counsel's performance fell below an objective standard of reasonableness and prejudiced the defendant (Hill v Lockhart, 474 US 52, 57-58 [1985]; Strickland v Washington at 687-688). In the context of a plea, the prejudice prong "focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process" (Hill v Lockhart at 58-59). Defendant must be able to show that there is a reasonable possibility that, but for counsel's error, he would not have pleaded guilty and would have insisted on proceeding to trial (id. at 59).

In New York, "[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, the constitutional requirement will have been met" (People v Baldi, [*4]54 NY2d 137, 147 [1981]). "In the context of a guilty plea, a defendant has 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" (People v Ford, 86 NY2d 397, 404 [1995]). Thus, "where a defendant, on the advice of counsel, has entered a plea of guilty and reaped the benefits of a favorable plea bargain which substantially limits his exposure to imprisonment, he has received adequate representation" (People v McClure, 236 AD2d 633 [2d Dept 1997], lv. denied, 89 NY2d 1097).

A defendant must also satisfy the "prejudice" requirement by showing that, absent counsel's alleged error, he would have insisted on a trial (People v Rodriguez, 188 AD2d 623 [2d Dept 1992], lv. denied, 81 NY2d 891). In order to establish that the defendant would have insisted on going to trial, an affidavit providing sufficient factual allegations must be submitted to the court (People v McDonald, 1 NY3d 109, 115 [2003]). Some of the factors that must be set out in such an affidavit are the strength of the prosecution's case, the availability of a defense, the likelihood of success at trial, a comparison of the sentence promised with the potential incarceration the defendant faced if convicted after trial, counsel's advice as to the reasons to accept the plea bargain, and a reason why the defendant admitted committing the act (People v McDonald, 296 AD2d 13, 19-21 [3d Dept 2002], aff'd., 1 NY3d 109). An unsubstantiated claim that the defendant would have insisted on proceeding to trial is insufficient (see People v Melio, 304 AD2d 247, 251-252 [2d Dept 2003]; compare People v McKenzie, 4 AD3d 437, 439-440 [2d Dept 2004]). There must be specific factual allegations supporting such a claim, or an explanation for defendant's inability to provide same (McDonald at 115).

It is apparent from the record that counsel worked successfully on defendant's behalf to procure a favorable result. Having been charged with Arson in the Second Degree, Burglary in the Second Degree, as well as multiple counts of Reckless Endangerment in the First Degree and Assault in the Third Degree, and a count of Criminal Contempt in the Second Degree, defendant was exposed to a potential sentence of up to twenty-five years. In exchange for his plea to Arson in the Second Degree, defendant was promised and received a determinate ten-year sentence followed by five years of post-release supervision. In this instance, counsel negotiated a highly beneficial disposition, and nothing has been raised before this court which casts doubt on the effectiveness of counsel (see People v Ford, 86 NY2d at 404).

Defendant's most prominent argument regarding counsel's effectiveness is that he was allegedly misadvised about the immigration consequences of his guilty plea. Specifically, defendant now maintains that his attorney informed him that he would not be deported if he pleaded guilty.

Prior to Padilla v Kentucky, — US —, 130 S. Ct. 1473 (2010), it was well-settled in New York that deportation was a collateral consequence "peculiar to the individual's personal circumstances and one not within the control of the court system" (People v Ford at 403). The failure by a defendant's attorney to warn the defendant of the possibility of deportation was not grounds to claim ineffective assistance of counsel (id.). Actual misadvice about the immigration consequences of a plea, however, could constitute ineffective assistance of counsel, provided there was a reasonable probability that, but for counsel's error, the defendant would not have pleaded guilty and would have insisted on going to trial (People v McDonald at 114-115).

In Padilla, the Supreme Court provided guidance as to the contours of defense counsel's obligation to advise a client on the possible immigration consequences of a guilty plea: "When the law is not succinct and straightforward..., a criminal defense attorney need do no more than [*5]advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear..., the duty to give correct advice is equally clear" (Padilla v Kentucky at 1483). Padilla also eliminated the distinction between affirmative misrepresentations and omissions, finding that "there is no relevant difference 'between an act of commission and an act of omission' in this context [citations omitted]" (id. at 1484). Whereas New York courts had distinguished between direct and collateral consequences in delineating counsel's Sixth Amendment duties (see, e.g., People v Ford, supra; People v Argueta, 46 AD3d 46 [2d Dept 2007], app. dismissed, 10 NY3d 761; People v Johnson, 41 AD3d 1284 [4th Dept 2007], lv. denied, 9 NY3d 877), the Court in Padilla found that distinction "ill-suited" to claims about the specific risk of deportation and held counsel responsible for providing correct advice about deportation regardless of whether those consequences were characterized as direct or collateral (Padilla at 1481-82).

Relying on Padilla, Mr. Hendricksen here argues that counsel's performance was deficient and that a hearing is required to establish that he was prejudiced by counsel's alleged misadvice under the second prong of Strickland's ineffective assistance of counsel test (Strickland v Washington, 466 US 668). The People disagree and maintain that if defendant's declarations were true, it would be under People v McDonald (1 NY3d 109) that he might be entitled to relief. In any event, regardless of whether the court were to evaluate defendant's claim under Padilla or McDonald, defendant must establish that he was prejudiced by counsel's incorrect advice, which he has failed to do here.

First, given the strength of the People's case, there is no reason to believe that defendant's decision to plead guilty would have been different even if counsel had misadvised him about the immigration consequences. In this case, there was overwhelming evidence of defendant's guilt. According to the police reports and other evidence in the case, an eyewitness observed defendant break a window and enter the basement apartment where defendant's wife lived. Minutes later, the eyewitness observed defendant run from the basement while flames and smoke engulfed the apartment. When the police apprehended defendant, he confessed several times that he had set the fire. Given these circumstances, Hendricksen would have inevitably been convicted after trial and would have faced deportation regardless of his decision.

It is also unlikely that defendant would have renounced a favorable plea bargain of ten years' incarceration and risk exposure to the maximum determinate sentence of twenty-five years for arson on the slim chance of being able to avoid deportation through acquittal. By pleading guilty, he received the benefit of a lenient sentence.

Moreover, defendant's credibility is undermined by the fact that he has made contradictory statements regarding his attorney's advice about the immigration consequences. In his petition to the United States District Court for the Eastern District of New York for a writ of habeas corpus, he asserted that "no advice of any kind, regarding deportation, was given to [him]." Defendant now asserts that counsel misinformed him of the potential immigration consequences of his conviction, specifically, that he would not be deported if he accepted the plea. In evaluating the validity of defendant's declarations, it is apparent that defendant's claims against his attorney are simply unreliable. The weakness of defendant's position is further compounded by his failure to offer an explanation for the discrepancy. Therefore, given the contradictory statements and the absence of any explanation, defendant's assertions are denied as being without merit.

Finally, apart from his own self-serving declarations, defendant has failed to submit [*6]sworn allegations of fact which substantiate that his attorney misadvised him about the adverse consequences of his guilty plea (CPL § 440.30[4][b]; see also CPL § 440.30[4][d]).

Accordingly, defendant's motion is denied in its entirety. A hearing is not warranted because there is no factual issue to be determined.

This decision shall constitute the order of the court.

The defendant is hereby advised, pursuant to 22 NYCRR § 671.5, of his right to apply to the Appellate Division, Second Department, 45 Monroe Place, Brooklyn, New York 11201 for a certificate granting leave to appeal from this determination. This application must be made within 30 days of service of this decision. Upon proof of his financial inability to retain counsel and to pay the costs and expenses of the appeal, the defendant may apply to the Appellate Division for the assignment of counsel and for leave to prosecute the appeal as a poor person and to dispense with printing. Application for poor person relief will be entertained only if and when permission to appeal or a certification granting leave to appeal is granted.

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Patricia Di Mango, J.S.C.