People v Lezama

[*1] People v Lezama 2012 NY Slip Op 51007(U) Decided on June 5, 2012 Criminal Court Of The City Of New York, Bronx County Scherzer, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 5, 2012
Criminal Court of the City of New York, Bronx County

The People of the State of New York

against

Jamie Lezama, Defendant



2002BX046819



Law Office of Van Brown, P.C. (Van Brown, of counsel), for the Defendant

Robert Johnson, District Attorney, Bronx County (Bari Kamlet, of counsel), for the People

Ann Scherzer, J.

Defendant Jamie Lezama moves pursuant to Criminal Procedure Law (CPL) 440.10(1)(h) for an order vacating his conviction, upon plea of guilty, to menacing in the third degree, on the ground that it was obtained in violation of his right to effective assistance of counsel. Based upon a review of defendant's motion papers, the People's response, and the court file, defendant's motion is denied without a hearing, as it does not contain sworn allegations to substantiate any facts in dispute. See CPL 440.30(4)(b); People v. Ozuna, 7 NY3d 913, 915 (2006)(failure to submit an affidavit from a corroborating source or explain a failure to do so warranted summary denial of a CPL 440.10 motion). Moreover, defendant's motion did not make a showing of prejudice sufficient to support his claim of ineffective assistance of counsel.

I. BACKGROUND AND PROCEDURAL HISTORY

On September 1, 2002, the defendant was arrested in Bronx County and charged with menacing in the second degree, a class A misdemeanor, in violation of Penal Law (PL) 120.14(1), criminal possession of a weapon in the fourth degree, a class A misdemeanor, in violation of PL 265.01(2), and unlawful possession of a knife, a violation of Administrative Code (AC) 10-133(b).[FN1] On September 6, 2002, the defendant pled guilty to menacing in the third degree, a class B misdemeanor, in violation of PL 120.15, in exchange for a promised sentence of one year's probation and participation in the "Narco Freedom" drug treatment program. The Court's promise was conditioned upon defendant complying with three conditions: (1) cooperation with the Department of Probation in its preparation of a report; (2) absolution from [*2]conduct that would lead to his being arrested prior to the sentence date; (3) return to court on October 16, 2002 to be sentenced (See plea minutes, Defendant's motion, Exhibit 1). The Court further informed the defendant that if he did not abide by those conditions, he could be sentenced to a jail term of up to ninety days.

On October 16, 2002, defendant failed to appear in court and a warrant was issued for his arrest. On February 18, 2004, defendant returned to court and on February 20, 2004, he was sentenced to a term of sixty days in jail.

By Notice dated March 30, 2011, the United States Department of Homeland Security (USDHS) advised defendant, a native and citizen of Trinidad and Tobago, that he was subject to removal from the United States based upon three criminal convictions including the instant one (Exhibit 1 to the People's Affirmation in Opposition).[FN2] By Order dated January 26, 2012, the Honorable Noel A. Ferris, Immigration Judge, denied defendant's application for cancellation of removal (See Exhibit 2 to the People's Affirmation in Opposition). Defendant's appeal of that Order is currently pending (See People's Affirmation in Opposition, para 5). Defendant is currently incarcerated due to an immigration hold at the Hudson County Correctional Center located in Kearny, New Jersey (Defendant's motion, p. 3).

Defendant now moves to vacate the judgment of conviction pursuant to CPL 440.10(1)(h) on the grounds that it was obtained in violation of his constitutional rights. More particularly, relying on Padilla v. Kentucky, 559 US ___, 130 S. Ct. 1473 (2010), defendant claims he was denied effective assistance of counsel, in that counsel failed to advise him of the potential immigration consequences of entering a guilty plea to the crime of menacing in the second degree, including the possibility that he could be deported based upon the conviction. Defendant also moves to vacate the conviction pursuant to CPL 440.10(3)(c) in the interest of justice and for meritorious good cause (Defendant's motion, p. 1).

II. DEFENDANT FAILED TO PROVIDE SWORN ALLEGATIONS SUPPORTING THE ISSUES OF FACT HE RAISES

A judgment of conviction enjoys presumptive regularity, and a defendant moving to vacate it pursuant to CPL 440.10 bears the "burden of coming forward with sufficient allegations to create an issue of fact." People v. Session, 34 NY2d 254, 255-56 (1974); People v. Stewart, 295 AD2d 249(1st Dept. 2000); People v. Braun, 167 AD2d 164, 165 (1st Dept. 1990). Indeed, CPL 440.30(4) provides:

Upon considering the merits of [a CPL 440.10] motion, the court may deny it without conducting a hearing if...(b) [t]he motion is based upon the existence or occurrence of facts and the moving [*3]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 record or other official document or is made solely by the defendant and is unsupported by any other affidavit or evidence . . . . (CPL 440.30(4)(b), (d), (i), (ii)).

A 440.10 motion based upon a claim of ineffective assistance of counsel may be denied without a hearing where the defendant fails to provide an affirmation from trial counsel supporting the factual allegations contained in the motion, or an explanation for his failure to do so. People v. Morales, 58 NY2d 1008 (1983): Stewart, supra at 249-50 (summary denial of 440.10 motion is proper where defendant failed to reveal an issue to be resolved by a hearing); People v. Johnson, 292 AD2d 284, 285 (1st Dept. 2002). But see, People v. Gil, 285 AD2d 7, 10 (1st Dept. 2001)(court erred in denying hearing where defendant provided viable explanation for failure to include affidavit, namely, fact that the attorney had been disbarred).

Here, defendant's motion is devoid of sworn allegations of fact substantiating his claim that his trial counsel did not advise him of the adverse immigration consequences of his guilty plea. Defendant provided neither an affirmation from trial counsel, nor an adequate explanation for his failure to obtain one. According to his papers, defendant's sole and unsuccessful effort to contact trial counsel was through the office of his prior employer, the Bronx Defenders (Defendant's motion, p. 3).

Thus, the only support for defendant's motion to vacate his conviction is his current attorney's allegation that trial counsel did not advise defendant of the immigration consequences that could result from pleading guilty (Defendant's motion, p. 2). This Court finds that the single effort to locate trial counsel without any follow-up is manifestly insufficient, particularly in light of the People's affirmation that they were able to locate and speak to trial counsel by conducting "a simple Google search"(People's Affirmation in Opposition, p. 4).[FN3]

The minutes from the plea proceeding of September 6, 2002, which are appended to defendant's motion papers, do nothing to bolster defendant's claim.[FN4] As the People point out, although the plea minutes are silent as to a prior conversation between the defendant and his attorney about possible immigration consequences of a guilty plea, such a conversation could well have transpired off the record (People's Affirmation in Opposition, p. 4). Moreover, defendant's papers do not even assert that he informed his former attorney of his immigration status. Since defendant's rap sheet which was based on information provided by defendant indicates his place of birth alternatively as "unknown," "Trinidad and Tobago," and "Japan", it is [*4]quite possible that defendant did not level with trial counsel about his place of birth or immigration status, nor could counsel have made that determination on his own.

Without an affidavit from trial counsel or other sworn allegations to support his claim, defendant is unable to meet his burden of establishing that trial counsel's performance was ineffective, nor does he raise an issue of fact requiring resolution through a hearing. People v. Gooden, 34 Misc 3d 1210(A), *3 (Bronx Cty. Sup. Ct., January 6, 2012) (citing CPL 440.30(4)(d)(i),(ii)); see also People v. Taylor, 211 AD2d 603 (1st Dept. 1995); People v. Miller, 8 AD3d 176, 178 (1st Dept. 2004), modified on other grounds, 6 NY3d 295 (2006) (summary denial of CPL 440 motion proper where defendant's factual assertions were "completely unsupported"); People v. Chen, 293 AD2d 362 (1st Dept. 2002), lv denied, 98 NY2d 696 (2002)(same). Accordingly, this Court denies defendant's motion without a hearing. CPL 440.30(4).

III. DEFENDANT FAILED TO DEMONSTRATE THAT HE WAS PREJUDICED BY ANY ALLEGED INEFFECTIVE ASSISTANCE OF COUNSEL

a. Federal Standard

Even if the Court accepted defendant's uncorroborated contention that trial counsel failed to advise him that his plea of guilty could lead to deportation, defendant's motion must be denied for failure to demonstrate that he was prejudiced by any alleged deficiency in legal advice. In order to establish ineffective assistance of counsel, a defendant must show both that counsel's representation fell "below an objective standard of reasonableness," as judged by the prevailing norms of practice, and that he was prejudiced by the alleged deficiency in the legal representation he received. In other words, defendant must prove that, "but for counsel's unprofessional errors, the result of the proceedings would have been different." Strickland v. Washington, 466 US 668, 694 (1984).

Since the performance and prejudice elements set forth in Strickland may be addressed in either order, "a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies." Strickland, supra at 688. "[I]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice...that course should be followed." Id. at 697. Thus, this Court is only required to consider counsel's performance if it finds that defendant was prejudiced by it.

i. Prejudice

In Padilla v. Kentucky, 559 US ___, 130 S. Ct. 1473 (2010), the defendant, a native of Honduras who was a lawful permanent resident of the United States, faced deportation after pleading guilty to transporting a large amount of marijuana in his tractor-trailer in Kentucky. Trial counsel failed to advise Padilla of the potential deportation consequence of his plea, and in fact falsely assured him that "he did not have to worry about immigration status since he had [*5]been in the country so long." Padilla, supra at 1478. Padilla claimed that if he had known that a guilty plea could lead to his deportation, he would have taken his case to trial. The United States Supreme Court observed that since "the consequences of Padilla's plea could easily be determined from reading the removal statute,"id. at 1483, "constitutionally competent counsel would have advised [Padilla] that his conviction for drug distribution made him subject to automatic deportation." Id. at 1478. Therefore, the court remanded Padilla's case for further proceedings to determine whether he could satisfy the second prong on an ineffective assistance of counsel claim, namely, that he was prejudiced as a result of his attorney's deficient performance.

Here, defendant faces removal from the United States wholly apart from his conviction in the instant matter based upon two Kings County convictions for class A misdemeanors: theft of services on September 16, 2003, and criminal possession of a controlled substance in the seventh degree on February 29, 2008.[FN5] Accordingly, defendant cannot argue that it was the specific guidance he received in this case that subjected him to deportation proceedings.

Furthermore, to demonstrate prejudice and prevail on his motion, defendant would have to show that it was "reasonably probable" he would have rejected the advice to plead guilty and would have instead exercised his right to go to trial, had he been properly advised. Hill v. Lockhart, 474 US 52 (1985); see also Padilla, supra at 1485 (to obtain relief a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances). Defendant has provided no evidentiary basis or even a statement to support that conclusion. People v. McDonald, 1 NY3d 109 (2003)(sufficiency of the defendant's allegations that he would have proceeded to trial should be judged by the face of the pleadings, the context of the motion, and the defendant's access to information).

Indeed, any claim that defendant's decision to plead guilty was not rational would run afoul of common sense.[FN6] The defendant received a favorable plea bargain; he pled to a reduced charge in exchange for a promise of probation and a treatment program. Even the sentence he ultimately received, sixty days in jail, was far more lenient than the one year he faced on a top-count conviction. As such, the defendant has failed to make a prima facie showing of prejudice, [*6]and his motion to vacate the instant conviction is denied on that basis. People v. Rauf, 90 AD3d 422 (1st Dept. 2011)(citing Padilla, supra; McDonald, supra).

ii. Performance

Having failed to demonstrate prejudice, it is unnecessary for this Court to determine whether counsel's performance fell below an "objective standard of reasonableness." Strickland, supra at 687-88; see also People v. Diaz, 92 AD3d 413 (1st Dept. February 2, 2012)(denying to address the issue of effectiveness of trial counsel's representation based on his failure to advise defendant that the plea mandated deportation, as defendant first found to sustain no prejudice); People v. Rosario, 93 AD3d 605 (1st Dept. March 29, 2012)("[d]efendant's argument that his trial counsel misadvised him as to the deportation consequences of a conviction is unavailing, because defendant has not made the necessary showing of prejudice.")(citing McDonald, supra at 115). Nevertheless, it is worth noting that in the context of a guilty plea, the First Department has found that a "favorable nature of [a] plea bargain demonstrates that defendant received effective assistance." Rauf, supra at 423 (citing People v. Ford, 86 NY2d 397, 404 (1995)(a defendant receives meaningful representation when he obtains "an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel."). Once a defendant acquires a favorable plea bargain, then "it cannot be concluded that defendant was denied effective assistance of counsel." People v. Black, 247 AD2d 238 (1st Dept. 1998); see also People v. Feliciano, 31 Misc 3d 128(A) (App. Term. 1st Dept. 2011). As such, this Court declines to address whether defendant's former counsel's advice fell below an "objective standard of reasonableness," and denies defendant's motions for the reasons stated above.

This Court declines to address defendant's motion pursuant to CPL 440.10(3)(c), as CPL 440.10(3) merely allows a CPL 440.10 court discretion to not impose the "may deny" procedural bars of CPL 440.10(3)(a), (b), and (c), and does not bestow an "interest of justice" review power akin to that of the Supreme Court Appellate Division found in CPL 470.15(3)(c).

This opinion constitutes the decision and order of the Court.

Dated: June 5, 2012__________________________

Bronx NYAnn Scherzer

Judge of the Criminal Court

Footnotes

Footnote 1:A class A misdemeanor carries a maximum jail sentence of one year, a class B misdemeanor carries a maximum jail sentence of ninety days, and a violation carries a maximum jail sentence of fifteen days.

Footnote 2:Defendant is also subject to removal based on his convictions in Kings County for theft of services (PL 165.15(3)) and criminal possession of a controlled substance (PL 220.03)(Exhibit 1 to the People's Affirmation in Opposition).

Footnote 3:The People affirm that they have spoken with trial counsel and he has indicated to them that he "cannot currently recall whether he advised defendant of the immigration consequences of his plea"(People's Affirmation in Opposition, p. 4).

Footnote 4:Notably, claims raised in CPL 440.10 motions must be based on facts outside of the record. CPL 440.10(2)(c).

Footnote 5: See Section 1227(a)(2)(A)(i) of the Immigration Naturalization Act (INA)(8 USC 1227(a)(2)(A)(I))(an alien is deportable from the United States who "(I) is convicted of a crime involving moral turpitude committed within...10 years in the case of an alien provided lawful permanent resident status...after the date of admission, and (II) is convicted of a crime for which a sentence of one year or longer may be imposed.").

Footnote 6:The People appear to have had a strong case against the defendant. The pleadings and signed supporting deposition clearly indicate that a civilian witness was involved and cooperative on the date of the filing of the accusatory instrument. Furthermore, a police officer made a sworn statement as to his observation of the defendant's possession of a knife, separate and distinct from the civilian's complaint against the defendant.