People v Lawrence

[*1] People v Lawrence 2012 NY Slip Op 52366(U) Decided on December 26, 2012 Supreme Court, Bronx County Price, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 26, 2012
Supreme Court, Bronx County

The People of the State of New York, Plaintiff,

against

Javian Lawrence, Defendant.



02048C-05



Appearances of Counsel:

Defendant, Pro Se

Jenetha Philbert

Assistant District Attorney

Office of the Bronx District Attorney

Richard Lee Price, J.

On January 13, 2005, judgment was entered against the defendant in Supreme Court, Bronx County (Villegas, J.), convicting him upon his plea of guilty to unlawful possession or marijuana (PL 221.05) and sentencing him to a fine of $200.00. On June 1, 2005, defendant was again convicted in Supreme Court, Bronx County (Lorenzo, A.) upon his plea of guilty to unlawful possession of marijuana (PL 221.05) and sentenced to a fine of $100.00.

By motion submitted September 10, 2012, defendant moves pro se to vacate two of his judgments of conviction for unlawful possession of marijuana pursuant to Criminal Procedure Law § 440.10 (1) (h) on the grounds that they were obtained in violation of the Sixth and Fourteenth Amendments of the United States Constitution and article 1, § 6 of the New York Constitution. After review of the motion papers, papers on file with the court, and prior court proceedings, defendant's motion is summarily denied.

I. Background and Procedural History

Defendant, a citizen and native of Jamaica, was admitted to the United States at New York, New York, on or about November 30, 1999, as a lawful permanent resident. On October 23, 2003, defendant was convicted in Supreme Court, Kings County, for the offense of sexual misconduct (PL 130.20 [1]) and sentenced to a term of six months incarceration. [*2]

As noted, defendant was convicted in Supreme Court, Bronx County, on January 13, 2005, and again on June 1, 2005, for the offenses of unlawful possession or marijuana (PL 221.05), and was sentenced to fines on both.

On February 22, 2008, defendant was convicted of yet another crime in the Circuit Court, Brunswick Commonwealth of Virginia, for three counts of forging public records (Sec. 18.2-168) and sentenced to five years incarceration.

On December 22, 2010, the United States Department of Homeland Security, Immigration and Customs Enforcement (ICE), issued defendant a Notice to Appear (NTA) for removal proceedings under section 240 of the Immigration and Nationality Act (Act). The NTA alleges defendant is subject to removal from the United States pursuant to sections 1227 (a) (2) (A ) (iii)[FN1] and 1227 (a) (2) (B) (i)[FN2] of the Act. On March 30, 2011, the defendant was ordered removed from the United States to Jamaica by the Immigration Judge Steven J. Connelly.

Defendant now moves to vacate both convictions for unlawful possession of marijuana pursuant to CPL 440.10 (1) (h) on the grounds that counsel rendered ineffective assistance by misadvising him as to the immigration consequences of pleading guilty. This court notes, however, that defendant previously moved for the same relief by pro se motion submitted November 9, 2011, which this court summarily denied by decision and order dated March 29, 2012. In fact, the only difference is that here, defendant asserts several additional claims of ineffective assistance of counsel, specifically that counsel: (1) coerced him into pleading guilty; (2) failed to investigate the accuracy of the complaint; (3) failed to advise him of his right to appeal; (4) failed to file notices of appeal on his behalf; and, (5) approached the cases in a hurried fashion. Defendant also asserts the People committed prosecutorial misconduct by failing to investigate the search of his home, and a potpourris of other perceived errors such as violating his rights to double jeopardy, ex post facto, equal protection, and due process.

II. Discussion

A. Procedural Bars

1. Reargue and Renew

Though not identified as such, it appears that defendant seeks to either reargue or renew his original CPL 440 motion. To the extent defendant's claim is in essence the same claim asserted in his previous CPL 440 motion, this court construes his current motion as seeking leave to reargue or renew. To do so, however, this court notes that the CPL does not provide for leave to either reargue or renew. Courts have, therefore, determined, as this court does, that where [*3]there are no applicable provisions in the CPL concerning the issue at hand, those provisions of the CPLR which do address the issue may, and should, be applied in a criminal action (see e.g. People v Davis, 169 Misc 2d 977 [Co Ct, Westchester County 1996, Leavitt, J.]; People v Radtke, 153 Misc 2d 554 [Sup Ct, Queens County 1992, Goldstein, J.]; People v Cortez, 149 Misc 2d 886 [Crim Ct, Kings County 1990, Stallman, J.]).

Regarding motions to reargue or renew, CPLR 2221 provides that a motion to reargue must "be based upon matters of fact or law allegedly overlooked or misapprehended." Thus, the purpose of a motion to reargue is to offer the unsuccessful party an opportunity to persuade the court to change its decision, not provide a second chance to more strenuously advance its argument or present an argument that it initially did not.

Conversely, a motion to renew must "be based upon new facts not offered on the prior motion . . . or shall demonstrate that there has been a change in the law that would change the prior determination" (Siegel, NY Prac § 254, at 383 [4th ed]). In other words, the purpose of a motion to renew is to offer the unsuccessful party an opportunity to either present facts that were unavailable at the time of the original motion or bring to the court's attention a material change in the law.

In denying defendant's prior motion, this court held that he: (1) failed to substantiate his allegations by either providing an affidavit from his attorneys or explaining his efforts to obtain one; (2) failed to establish that he suffered immigration-related consequences solely as a result of the alleged misadvise of counsel; (3) failed to establish prejudice since he was already a deportable alien based upon the other convictions; (4) failed to demonstrate a reasonable probability that he would have risked trial, conviction, a lengthy term of imprisonment and subsequent deportation, when presented with the opportunity to pay a fine instead; and, (5) he received a favorable plea agreement.

No where in his present motion does the defendant assert or argue that this court overlooked or misapprehended the law, demonstrate a relevant change in law, allege new facts not present during this court's prior determination of this issue. Accordingly, whether it is reargument or renewal that defendant seeks, it is devoid of any merit as a matter of law.

2. CPL 440.10 (3)

Assuming defendant's claim is properly based in CPL 440.10, it is nevertheless procedurally barred pursuant to CPL 440.10 (3) (b), which provides that the court may deny a motion to vacate a judgment when the grounds or issues raised in the motion were previously determined on the merits in a prior motion absent a retroactively effective change in the law (see CPL 440.10 [3] [b]). Clearly, defendant's motion raises ineffective assistance of counsel claims previously denied by this court, and no retroactively effective change in the law exists to alter such denial.

Defendant's motion must also be denied pursuant to CPL 440.10 (3) (c), which provides that a "court may deny a motion to vacate a judgment when [u]pon a previous motion made pursuant to this section, the defendant was in a position adequately to raise the ground or issue underlying the present motion but did not do so" (see CPL 440.10 [3] [c]). [*4]

In his present motion, defendant raises several new allegations of ineffective assistance of counsel, specifically, that his attorneys "coerced" him into pleading guilty, failed to investigate the accuracy of the complaint, failed to advise him of his right to appeal, failed to file notices of appeal on his behalf, and approached the cases in a hurried fashion. He further alleges prosecutorial misconduct claiming the People failed to investigate the search of his home, and that trial errors occurred in both cases that "violated the double jeopardy, ex post facto, equal protection, due process and effective assistance of counsel clauses of the Fifth and Sixth Amendments."

It escapes this court how defendant was not "in a position to adequately raise" such claims in his previous motion. Surely, he had access to the same information then as he does now. Yet, despite being in a position to do so, he did not, and offers no explanation for such failure. This court can only conclude that such failure, in and of itself, indicates he had little, if any, expectation of success in this regard. It is, therefore, puzzling that he not only seeks a second bite at the apple, but asks this court consider new claims as well.

3. CPL 440.30 (4) - Failure to Allege Issues of Fact

Assuming defendant satisfied his procedural burden of asserting the ineffective assistance of counsel and prosecutorial misconduct claims in his previous motion, which he clearly has not, they are entirely unsubstantiated. CPL 440.30 (4) provides that the court may, upon considering the merits of the motion, deny it without a hearing if the motion is based upon essential facts without sworn allegations substantiating or tending to substantiate them, or an allegation of fact essential to support the motion is either contradicted by a court record or other official document, or made solely by the defendant unsupported by any other affidavit or evidence, and there is no reasonable possibility that such allegation is true (see CPL 440.30 [4] [b]; CPL 440.30 [4] [d] [i], [ii]). A judgment of conviction is presumed valid, and a defendant moving to vacate his judgment has the burden of coming forward with sworn allegations sufficient to create an issue of fact (see CPL 440.30 [4] [b], [d] [i], [ii]; see People v Session, 34 NY2d 254, 255-256 [1974]; People v Richetti, 302 NY 290, 298 [1951]; People v Braun, 167 AD2d 164, 165 [1st Dept 1990]).

Here, the defendant failed to meet his burden. None of the defendant's papers contain sufficient allegations to substantiate his claims. When a motion to vacate a conviction alleging ineffective assistance of counsel is submitted without an affirmation from former defense counsel, such omission is not fatal; however, an omission or a lack of explanation for the omission may be considered by a court in denying the motion without a hearing (see People v Scott, 10 NY2d 380, 382 [1961]). The defendant alleges that he received ineffective assistance of counsel through his attorneys' statements and actions. Defendant did not, however, provide the court with affidavits supporting their alleged actions, nor did he provide any good faith explanation for his failure to do so (see CPL 440.30 [4] [b]; see People v Scott, 10 NY2d 380, 382 [1961] ["It was not error to have insisted that petitioner obtain an affidavit from this lawyer who is living and available, as a minimum earnest of good faith to justify the granting of a hearing. If he had applied to this lawyer and the lawyer had declined to comply with a request for an affidavit, there would be time enough to consider whether to grant a hearing at which the lawyer's attendance might be compelled by compulsory process."]). [*5]

Furthermore, while defendant conveniently recalled specific portions of conversations with counsel, he neglects to identify their names, addresses, or telephone numbers. Instead, this court must rely solely on a personal affidavit, which in no way provides the support needed to substantiate the defendant allegations. Similarly, the defendant's additional claims of prosecutorial misconduct are unsubstantiated because he omits any allegations that he informed the court, the prosecutor, or his attorneys about his belief that the search of his apartment was illegal. Accordingly, the defendant's unsubstantiated claims, without further evidence, are insufficient to meet his burden of proving that counsels' performance was ineffective or that there was prosecutorial misconduct (CPL 440.30 [4] [d] [i], [ii]).

B. Ineffective Assistance of Counsel

Under the federal test for ineffective assistance of counsel, as put forth in Strickland, a reviewing court must engage in a two-prong analysis: (1) was counsel's performance deficient by falling below an "objective standard of reasonableness" as judged by the prevailing norms of practice, and (2) whether a defendant suffered actual prejudice as a result of that deficiency; whether or not "but for counsel's unprofessional errors, the result of the proceedings would have been different (Strickland v Washington, 466 US 688, 694 [1984]).

Like the performance prong in Strickland, New York law provides that "a defendant must show that his attorney's performance fell below an objective standard of reasonableness" (Rosario v Ercole, 601 F3d 118, 124 [2d Cir 2010]; see also People v Turner, 5 NY3d 476, 480 [2005]). However, unlike the second prong of the federal standard which accounts for the advice's effect on "the result of the proceedings", the New York test poses a question of "whether the attorney's conduct constituted egregious and prejudicial' error such that [the] defendant did not receive a fair trial" (People v Benevento, 91 NY2d 708, 713 [1998]. As such, the New York standard is "more generous to defendants" than the federal standard because "even in the absence of a showing that but for counsel's errors the outcome would be different, a defendant may still have an ineffective assistance claim under New York's constitution" (emphasis added) (Rosario v Ercole, 601 F3d 118, 125 [2d Cir 2010]; see also People v Ozuna, 7 NY3d 913, 915 [2006]); People v Turner, 5 NY3d 476, 480 [2005]; People v Caban, 5 NY3d 143, 155-56 [2005]; People v Stultz, 2 NY3d 277, 284 [2004]; People v Benevento, 91 NY2d 708, 713-14 [1998]).

Both of defendant's motions allege ineffective assistance of counsel claims framed in terms of counsel's misadvice regarding potential immigration consequences. This court notes, however, that defendant alleges his attorney stated, "[i]t's just a misdemeanor . . . it won't make any difference because this deal is for a fine and no jail time involved." Such a statement ostensibly supports a claim of failing to advise of potential immigration consequences as well.

1. Affirmative Misadvice

In McDonald, the New York Court of Appeals held that affirmative misstatements made by defense counsel may, constitute ineffective assistance of counsel (see People v McDonald, 1 NY3d 109 [2003]). As such, defense counsel's affirmative misrepresentations concerning a non-citizen defendant's deportation consequences, would be sufficient to fall below the objective standard of reasonableness delineated in the first prong of the federal Strickland analysis. [*6]However, to fully satisfy a claim for ineffective assistance of counsel, a defendant must still demonstrate prejudice, under the federal Strickland analysis, or that the attorney's conduct created prejudicial error that amounts to the defendant's deprivation of a fair trial, as per the New York test.

Here, the defendant's attorneys' alleged misstatements would be sufficient to satisfy both the first prong of Strickland analysis as well as the New York test. Such alleged affirmative misstatements concerning potential immigration consequences would indeed demonstrate that the attorneys' conduct fell below an objective standard of reasonableness. As noted below, however, defendant fails to satisfy the prejudice prong of the ineffective assistance of counsel analysis.

2. Failure to Advise

In its March 29, 2012, decision, this court considered defendant's Padilla ineffective assistance of counsel claim. In Padilla, the Supreme Court imposed an affirmative duty upon defense counsel to provide accurate advice to a non-citizen defendant concerning the potential immigration consequences of pleading guilty (Padilla v Kentucky, 130 S Ct 1473, 1486 [2010]). Padilla gives guidance as to the scope and nature of legal advice that courts should require of practitioners in the immigration context by stating that where the "terms of the relevant immigration statute are succinct, clear, and explicit in defining the removal consequence[s] for conviction," constitutionally, competent counsel must advise a defendant that his conviction makes him subject to mandatory deportation (Padilla at 1477).

To be eligible for cancellation of removal, a defendant must: 1) have been a permanent resident for at least five years; 2) have continuously resided in the United States for seven years after having been "admitted in any status"; 3) and, not have a conviction for an aggravated felony. Here, the defendant was considered an aggravated felon pursuant to section 1227 [a] [2] [A] [iii] of the Act prior to the unlawful possession of marijuana pleas violating 1227 [a] [2] [B] [i], as a result of his previous sexual misconduct charge. Therefore, even if the unlawful possession of marijuana convictions were vacated, he would nevertheless have been ordered removed from the United States based upon his prior history of sexual misconduct. Moreover, the conviction for forgery of public records was yet another violation of section 1227 [a] [2] [A] [iii] of the Act. To be sure, counsel certainly had an affirmative duty to inform the defendant of the possible deportation consequences of pleading guilty; but the impact of the defendant's guilty plea in no way affected his immigration status because his earlier convictions had already rendered him a deportable alien.

3. Prejudice

Counsel's duty aside, defendant failed to establish that he suffered immigration-related consequences solely as a result of the alleged failure. As noted, defendant was subject to deportation proceedings as a result of his prior convictions for sexual misconduct and forgery of public records. It is, therefore, incomprehensible that the defendant was prejudiced by counsels' alleged errors. Additionally, counsel procured an exceptionally favorable plea arrangement that netted the defendant the payment of fines. In light of such an advantageous plea, and the sheer lack of evidence of counsel's ineffectiveness, defendant undoubtedly received meaningful [*7]representation (see People v Ford, 86 NY2d 397, 404 [1995]). Indeed, defendant received a significantly reduced sentence because of counsel's skill and effort in obtaining a favorable disposition. Furthermore, there is no reasonable possibility that defendant would have risked trial, conviction, a lengthy term of imprisonment and subsequent deportation, when he could pay fines instead. Defendant is therefore unable to establish prejudice under either the state or the federal standards.

IV. Conclusion

For the reasons state above, this court finds that to the extent that defendant's motion raises ineffective assistance of counsel claims previously asserted in his prior motion, it is denied pursuant to CPL 440.10 (3) (b). To the extent he raises claims not previously asserted, they too must be denied pursuant to CPL 440.10 (3) (c). Nevertheless, this court concludes defendant received effective assistance at all stages of the proceedings, and his claims of prosecutorial misconduct are entirely without merit (see People v Ford, 86 NY2d 397, 404[1995]; Strickland v Washington, 466 US 668 [1984]). Defendant's motion to vacate his judgments of conviction pursuant to CPL 440.10 (1) (h) are therefore denied in all respects.

This constitutes the decision and order of the court.

The clerk of the court is directed to forward a copy of this decision to the defendant at his place of incarceration.

Dated: December 26, 2012

E N T E R

______________________________

Richard Lee Price, J.S.C. Footnotes

Footnote 1: Section 237 (a) (2) (A) (iii) of the Immigration and Nationality Act (Act), as amended, in that, at any time after admission, you have been convicted of an aggravated felony as defined in section 101 (a) (43) (A) of the Act, a law relating to a sexual abuse of a minor (8 U.S.C. § 1227 [a] [2] [A] [iii]), (8 U.S.C. § 101 [a] [43]).

Footnote 2: Section 237 (a) (2) (B) (i) of the Immigration and Nationality Act (Act), as amended, in that, ay any time after admission, you have 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 (as defined in Section 102 of the Controlled Substances Act, 21 U.S.C. § 802), other than a single offense involving possession for one's own use of 30 grams or less of marijuana (8 U.S.C § 1227 [a] [2] [B] [i]).