People v Cordero

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People v Cordero 2013 NY Slip Op 33876(U) December 6, 2013 Supreme Court, Bronx County Docket Number: 3443-08 Judge: John W. Carter Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] :QUPQGMH COURT OF THH STATE OF NEW YORK COUNl y OF BRONX H98 ---------------------~-----------;,]( THEPEOPLEOFTHE.STATE OF NEW YORK ' -against~ F~~isco Melo D6CISIQN & ORD.fiR Cordero Ind#~ Defendant 3<(y3-()1' ..... ,;;.;...;..',i;,..-.--... ---·.:;..·.-·-·--·---.. ------------------------~------------·-·---x Carter, J. Defendant Fran¢isco MclO Codero has fi1ed a motion pursUant to Crimi111lProcedure Law, C.P.L.§ 440.10 (1) (h)~ to vacatehis,eonviction. O&October I, 20081 defendantpledlUflty to PenalLaw fftereinafter P.L] § J20 .05 * Assault in the Second Degree and was sentenced to sixty days jail to 'be tblfowed'1>Y five years probation. He waived his right to appeal and a permanent order of protection was issued for the complaining witness. Specifically, Defendant contends that his attorney was ineffective in that he misinformed him of the poumtiaYimmigretion consequen•,~ofhis plea. Presently there are no deportation proceedings lodged against the defendant. The People have responded to the defendatit's motion and oppose Jt. This Cowt'Jm.s "extml~'a m't!:,ifefendant's moving papers, the People's response, defendant's reply and the Court tile in this case. and hereby makes the following determinations: On,September 28, 2008, the defendant was charged on a felony complaint with one count of , Attempted Mttrder in 'the Second Degree [Pt l 10lI'25.2SJ, one count of Assault in the Pim Degree , {PL 120•.10·(1)], two counts of Assault in theSecondOeQ'.tee [PL120.05 {1),(2)]and other related · ··e'~tbr anineident involving his then intimate partner. On October 1. 2008, defendant subsequently plead guilty on SCI 3433/2088 to ABAmt in the Second Degree and was sentenced on "0Ctobit:9 l, ·2008;to the abo\Je.sentenee. [* 2] Defendant has filed theinstant motion, five years after his sentence, claiming that his attorney ,jnconrectly i.nfonned him, that he could avoid deportation if he plead guilty whereu he would most cettainly face deportation were he to be convicted after trial.(defendant's afft P3) At the time of his plea, 8 USC 1227 (a) (2)(E)(i) provided for the expulsion of aliens convicted of domestic violence crimes. Defendant's actions qualified as a domestic violence crime under the relevant New York statute making him m.tbjeet to possible deportatfon~ Deferttimt argues tliat in the wake of Padilla, an attorney does not provide ••effective assistance" or "meaningful representation" unless that attorney advised his client on the cortect immigration consequences of his plea. (Defendant's aff'mnation in reply p4j Defendant contends: that his attorney 'did not do so here and alleges thatifhe had known about1hecthose consequences he would not have pied guilty to this charge and would have gone to trial. The People in response contend Defendant's.,claim's are meritless, unsubstantiated, and that his motion should therefere be denied' pursuant td C.P;L. §§ 440JO (2)( c}, 440.30,(4)(b} and (d}. A defendantin a,criminal proceeding is constitutionally entitled to effective assistance of counsel (Stri~ldand v Washington, 466 US 668 (1984); US Const., 6th Amend.; NYConst., art. l, §6). To pre~ail on an ineffective assis•ce of counsel claim under the federal standard, the defendant must be,,1\Jht to show that coW¥ePs performance fell below an objective standard of reasonableness and prejudiced the defendant. (Hill v Lockhart, 474 US S2 (1985)) In the context ofa plea, the prejudice prong asks whether "counsel's constitionally defective performance affected the outcome of the plea ~¢eis''.(ld at 59-59) In New York, in order to defeat a claim of ineffective assistance of counsel, it must be demonstrated that .the attorney provided meaningful representation. (People v Stultz, 2 NYld 277(2004) · Th(UUU)d:ard of effective assistance wiU have been,met"so long as the evidence, the law and the circ~~ces of a particular case viewed it't totality ~ of the time of the representation reveal the [* 3] context of a plea,there must first be an initial showing of prejudice,' that had it not been for coutisel's . advice the Defendant would have proceeded to;trial,and ultimately could have obtained a beneficial ; oUtd0m.,'(McDonald at 109) Defendant contends that his previous attorney's representation fell below both the federal and state standards and that in the wake of padUJa. it is required that his conviction be vacated 1• In Padilla v Kentueky,S59 US 356 (2010), the Supreme Court ruled that criminal defense attorneys have to advise defendantsof"truly clear~ immigration consequences of'their pleas . The "new rule" in Padilla is not to be,given retroactive effect. (Chaidez v United States 133 S. Ct. 1103 (2013 "); People v Verdejo, 109 AD3d 138 (1st Dept,2013) COftsequently, Padilla does not apply to collateral challenges:to convictions, that Uke in the'instant case~ that became final prior to the Padilla decision. (Chaidez v United States 133 $;Gt. l l'03' (2013); People v Marooll. 40 Misc 3d 14l(A) (t• Dept 2013) Prior to Padillll} the immigration consequences of plea were considered collateral and absent misadvice, the faUure to'advise a defendant of those bnmigration consequences neither rendered ~Qunsel's performance deficient or rendered the plea involuntary. (People v McDonald at t14-115) Defendant's most salient argument is that counsel gave him misadvice in lightofthe new law emwtethtprtoximatcly,nine weeks prior to his plea. Relying on Padilla and People v Pieca, 97 Ad3d 170 2 (ldtDept:ltl2) defenilant requests at minimum a heuing to determine counsel's ineffectiveness. Defenda.nt ~6es n~texp!ieit!y argue th~ P~illa s.hould be given retroactive application but 1 ,fl:~!S ~9~~out his motion that given the rubngmJ>adiUa, counsel's erroneous advise regarding his tfepottinon consequences was essentia1ly per se ineffective. 2 ' .· · · De~enikmt relies on Pi~a .for the premise that immigration consequences were of utmost ~n~em ~ hllll and that the reviewing court must de~ermine whether the decision t<? ple~ guilty~ a .•ratio~ o~e. The See?nd ~epartme~t foun~ tha! Ptcca may have been prejudfoed based on his :~~UJl8~1 ~ fadure to advise him. regarding the unnugration consequences of his plea. As this court has art:ady noted, subsequent to P1cca~ the Supreme Court decided that Chaidez v United States (sl.lpra)in r~i.c~, th,~ co~ forcI~sed the Padilla analysis to tho~. convictions that ~e final prior to it's ·ecunon in 2010; Thus the Picca analysis does not apply in this context. [* 4] . ·... ~rtb~l~11Js•. Ml1~. doe$ not diminish the Stricldand, requirements. The burden remains with the defendant to establish, that, 1) his counsel'$ representation was inferior t.o an objective standard of .•nal:>leness, and 2) the defendant must still show prejudice, i.e. that if not for counsel's ~nably ine!Tective representation, he would not have pied guilty, but would have insisted on going to trial. See,,People v McDonald, 1NY3d109 (2003); Hill v Lockhart, 474 U.S. 52, 56, 88 L. Ed. ?d674,106 S. Ct. 366£1985]. Oefendan.t has failed to meet both the Stri5*~1nd and the~ tests for ineffective represention. Defendant's moving papers fail to establish that counsel· was deficient under·the first prong of Strickland or failed to provide meaningful representation under Baldi. Defendant was represented by competent coUDsel·andreceived a favorable sentence. Atthe dme ofthe .plea, the defendant was facing the chargeJ ~f Attempted Murder in the SlilOnd Degree. ·~tin the; I:irst Detree, Assault in the Second D~g£ee and related charges. lf .convicted after trial of Eiither of the top two charges, he could have receiyed.a senten~ between five and twenty-five years ~earceration• .If convicted e>fAssault in the Secood·Degree, defendant faced a possible sentence of up t~;at\14~.yearsJn pr,ison. The plea n~gotiated by counal, 60 days in jail with five years probabtion, was one:. ~tpeimitted him to· be released after serving less than two months in jail with the remainder of his sentence under the supervision of the Department of Probation. Given the defendant's limited exposure ·~ ~iQn·if.he plead guilty, it is UD1ikely thit his decision would have been different on the slim c~ance'of beiJli &Pie to avoid. deportation by virtue olan acquittal. Where "a defendant, on the advice of counsel, has en~~·a plea ofguilty and reaped tbe 'benefits ofa favorable plea bargain which stjbstantially limits his exposure to imprisorunent, he has received adequate representation" (People v His claim also«~ontradicts the report filed by the Department of Probabtion at the time. wherein the defendant admitted his guilt. The defendant's claim must be supported by objective facts and a"bare cla.inrthat the defendant would have insisted on proceeeding to trial is insufficient. (People v [* 5] .1 (2d ~pt 2004) When a:Defenchutt-~i motion to va<)tlte, "it ij;h0r:~nQugb( ' . ,, ' ,~ti:~· i ' usory.~l~!tions.~iilti1*~:f'i#ts; su~ng evidertti.~~ts must~ p~vl~~See :t e~~~tiaq facts~. ·.'.. ,_,,. ·:-:;·,,,·· /: ' 11 -~°' .~ ~ ~'w>.~:tnsthen)·~uns~l ~:ainlchedto the motion:· nefendanthasnbt deirtotistrated·ar~ibl~probali~ity -:~~Dft;:ij;s"t~fi:'L~~~:;,,/,.. ';· ,·'· '· - ,, ' ' { ·.~·. .: .. ' "·. , · { .. , ~\ ··. , · .· ·~·· '1fo~l1,s.advisehe would have:insiSt;td.on a trial; ·,;A::~,::",·,,,,,':'\,,'",''"\'.°\':·. '>v ~ • ,• _. CC '.":'"'\~~:<'',,/' '•;' '.·. .- ""''"':i'"\<<:;,;, .. , /;~<>·':per~.ta1 · ·-'f: /' ... " ' ··." .:~;<:1h _ · ~: ; "~ '· '.,;;.; r ·' · · ·.<· ·;·~h:~·· -··" ·~Sc~~t·s~~H~~~d~'s~~h\sc . " . ·:· ·>. ·. . " · . . .·. · ".·.· .. ,... . . . '. . . .. ..;>j;'fr·..>.· . ~" · · ~·mi~vi~~: DefendSitt··~lttims~. W,u tnisledhlto beli""his lie Wa5a@pting2tt•'l)l8,tba1·•"1 nitc:• · <:~~"'~·· . 'dopO~OI''. . 1l¥,JWlt)',ni>Jth~t~e\'.~' · .,·...,,:·· . ' '>',:, ..,," . · · 'apart1;;d co~l~~fy I . \ / ,._ _·, ,;,. . ,:,·;~;~;·/'*>¥:~-',-.,, . ;,.,,.':·,· ,,·, the;~lid,prong~t>ftht,4~ilfcliandstaliUiia.k{PeoPf•~~• . .> ti~PD.c;;~.h1:;.,~.'.·. ~,,d'.<fh.f,, with.•.:.·.,.:·•;· "• , ,,.,.,. '· . ..

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