People v Burrell

[*1] People v Burrell 2013 NY Slip Op 51242(U) Decided on July 15, 2013 Criminal Court Of The City Of New York, Kings County Kalish, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 15, 2013
Criminal Court of the City of New York, Kings County

People of the State of New York

against

Errol Burrell, Defendant(s).



2008KN033846



Counsel for the People: ADA Gamaliel Marrero

Counsel for the Defense: Paul Brenner Esq.

Robert D. Kalish, J.

Upon the submitted papers, the Defendant, Errol Burrell's motion pursuant to CPL 440.10 to vacate three judgments of conviction rendered against him in three separate criminal actions based upon three guilty pleas is hereby denied without a hearing as follows:

Procedural History

In the instant motion the Defendant is moving to vacate three pleas and judgements rendered in three separate criminal actions:

On docket number 2007KN066005, the Defendant was charged with violating Penal Law §§ 221.10 - Criminal possession of marihuana in the fifth degree (Class B Misdemeanor); 221.05 - Unlawful possession of marihuana (Violation) and 240.20 - Disorderly Conduct (Violation). On August 21, 2007, the Defendant was arraigned on said charges; and he plead guilty to Penal Law § 240.20. The Defendant was sentenced to time served.

On docket number 2008KN033846, the Defendant was charged with New York Administrative Code 10-125 - Consumption of alcohol in public (Violation); Penal Law §§ 221.10 - Criminal possession of marihuana in the fifth degree (Class B Misdemeanor) and 221.05 - Unlawful possession of marihuana (Violation). On May 5, 2008, the Defendant was arraigned on said charges; and he plead guilty to Penal Law § 240.20. The Defendant was sentenced to time served.

On docket number 2008KN078826, the Defendant was charged with violating Penal Law §§ 221.10 - Criminal possession of marihuana in the fifth degree (Class B Misdemeanor) and 221.05 - Unlawful possession of marihuana (Violation). On October 22, 2008, the Defendant was arraigned on said charges; and he plead guilty to Penal Law § 240.20. The Defendant was sentenced to time served. [*2]

Parties' ArgumentsDefense counsel argues in sum and substance that the Defendant's previous three defense counsel in each of the three cases under docket numbers 2007KN066005, 2008KN033846 and 2008KN078826 failed to inform the Defendant of the potential immigration ramifications prior to the Defendant pleading guilty in each of the cases respectively. Defense counsel argues that at no time did the Defendant's three previous counsel discuss with the Defendant his status as a resident alien, and that said prior counsel failed to inform the Defendant that a criminal conviction could be used in the future as a basis for removing the Defendant from the United States. As such, the Defense argues that the Defendant was effectively denied his constitutional right to effective assistance of counsel pursuant to Padilla v Kentucky (130 S Ct 1473 [2010]). Defense counsel indicates that his affirmation is "based upon information and belief, the source being a review of the files maintained by the defendant with respect to this matter, which statement, on that basis, I [Defense counsel] believe to be true." The Defense does not attach an affidavit from the Defendant.

In opposition, the People argue that the Defendant's motion should be dismissed as pursuant to the Supreme Court of the United States' decision in Chaidex v United States (133 S Ct 1103 [US Feb 20, 2013]) that Padilla v Kentucky (Padilla v Kentucky, 559 US 356 [2010]) is not applied retroactively to convictions that occurred prior to 2010. The People further argue that the Defendant is not subject to deportation as a result of entering the guilty pleas to Penal Law § 240.20 in the three underlying criminal actions, and therefore the Defendant's three prior counsel had no duty to warn the Defendant that he could be deported. The People argue that had prior counsel advised the Defendant that he would be potentially subject to deportation due to pleading guilty to Penal Law § 240.20 in the three underlying cases, said advice would have been misleading. The People further argue that the motion papers do not include an affidavit by the Defendant attesting to his personal knowledge of his communications with his previous attorneys. The People also argue that according to the Defense counsel the Defendant is currently a legal permanent resident in the United States, and that upon investigation by the People, as of April 29, 2013 the Defendant is not involved in removal proceedings. Finally, the People argue that the Defendant's three previous counsel all provided him with effective assistance and that there is insufficient reason to believe that the Defendant would not have plead guilty in each of the three cases but for the counsel's alleged failures to advise him of the immigration consequences of each guilty plea.

Analysis of Law

The Defendant's burden on a motion to vacate his guilty plea and the judgment entered against him pursuant to said plea

CPL 440.10 (1) (h) reads as follows: [*3]

440.10. Motion to vacate judgment

1. At any time after the entry of a judgment, the court in which it was entered may, upon motion of the Defendant, vacate such judgment upon the ground that:

[h] The judgment was obtained in violation of a right of the Defendant under the constitution of this state or of the United States.

"There is a presumption of regularity which attaches to judgments of conviction. In order to overcome that presumption and entitle a Defendant to a hearing on a motion to vacate the judgment pursuant to CPL 440.10, the Defendant has the burden of coming forward with allegations sufficient to create an issue of fact as to matters not appearing on the record of the underlying conviction." (People v Crippen, 196 AD2d 548, 549 [2d Dept 1993] lv denied 82 NY2d 848 [1993]; see also People v Mims, 94 AD3d 909 [2d Dept 2012] lv denied 19 NY3d 964[2012]; People v Cruz, 14 NY3d 814, 816 [2010]; People v Andrew, 1 NY3d 546 [2003]; People v Velasquez, 1 NY3d 44 [2003]; People v Bogan, 78 AD3d 855 [2d Dept 2010] lv denied 16 NY3d 742 [2011]).

The Defendant has a due process right to understand the substance of his plea and a Constitutional right to effective assistance of counsel.

Due process requires that a defendant understand the nature of his plea. "A trial court has the constitutional duty to ensure that a Defendant, before pleading guilty, has a full understanding of what the plea connotes and its consequences." (People v Ford, 86 NY2d 397, 402 [1995]; People v Monk, 21 NY3d 27 [2013]; People v Belliard, 20 NY3d 381 [2013]). The Court's discretion to vacate judgments is limited to those grounds enumerated in CPL 440.10 (1). "Subsequent to sentencing, a plea may not be withdrawn, and a judgment of conviction may only be vacated upon a legal ground specified in CPL 440.10 (1)." (People v Reyati, 254 AD2d 199 [1st Dept 1998] lv denied 93 NY2d 856 [1999]; People v Michael, 16 Misc 3d 84 [2d Dept 2007]).

A defendant's right to effective assistance of counsel is guaranteed by both the Federal and New York State Constitutions (See Strickland v Washington, 466 US 668 [US 1984]; People v Ennis, 11 NY3d 403

[2008]; People v Turner, 5 NY3d 476, 479 [2005]; People v Berroa, 99 NY2d 134, 138 [2002]; see also US Const., 6th Amend; NY Const., art 1, § 6; CPL 440.10[1][h]). Effective assistance of counsel under New York constitutional law requires that the Defendant be afforded "meaningful representation." (See People v Turner, 5 NY3d at 480; People v Oliveras, 2013 NY Slip Op 4040 [June 6, 2013]; People v Henry, 95 NY2d 563, 565 [2000]). " So 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,' a defendant's constitutional right to the effective assistance of counsel will have been met." (People v Henry, 95 NY2d at 565, quoting People v Baldi, 54 NY2d 137, 147 [1981]; see also People v Cason, 90 AD3d 777 [2d Dept 2011]).Further, there is a strong presumption of effective assistance of counsel that a defendant must overcome in order to prevail on his CPL 440.10 motion (See People v Birch, 284 AD2d 405 [2d Dept 2001] lv denied 96 NY2d 916 [2001] citing People v Baldi, 54 NY2d 137 [1981]; People v Myers, 220 AD2d 461 [2d Dept 1995] lv denied 87 NY2d 905 [1995]).

The Federal Standard for Determining Ineffective Assistance of Counsel

In Strickland v Washington (466 US 668 [1984]), the Supreme Court laid out a two pronged test for determining a defendant's claim that he was denied his right to effective [*4]assistance of counsel due to the actions of his attorney: "First, the Defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the counsel' guaranteed to a Defendant by the Sixth Amendment. Second, a Defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the Defendant of a fair trial, a trial whose result is reliable." (Strickland at 687; see also People v Turner, 5 NY3d at 481; See United States v Caracappa, 614 F3d 30, 46 [2d Cir 2010]).

Under the first prong of the Strickland test, in order to establish that he was denied his right to effective assistance of counsel, the defendant must show that defense counsel's performance was not reasonable under the prevailing professional norms. (Strickland at 688; see also Padilla v Kentucky, 130 S Ct 1473, 1482 [2010]). Under the Strickland test, an unsuccessful defense strategy does not by itself constitute ineffective counsel. In scrutinizing a defendant's counsel's performance, the Court must be highly deferential and cannot second-guess counsel's assistance after a conviction just because counsel's defense was ultimately unsuccessful (Strickland at 688).

The second prong of the Strickland test requires that a defendant "affirmatively prove prejudice", meaning that even if a defendant establishes that his counsel's errors were "professionally unreasonable", the conviction will not be set aside if said errors had no effect on the judgment (Strickland at 692-693). "The Defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome" (Strickland at 694; see also United States v Caracappa, 614 F3d at 46; People v Stultz, 2 NY3d 277, 283 [2004]).

The New York State Standard for Determining Ineffective Assistance of Counsel

To determine whether a defendant is denied his right to effective assistance of counsel as provided under the New York State Constitution, the New York Court of Appeals has adopted the first prong of the federal Strickland test (See People v Turner, 5 NY3d 476 [2005]).

However, in place of the federal requirement that a defendant show actual prejudice, the courts under the New York State Constitution have adopted a broader "meaningful representation" test (People v Turner, 5 NY3d 476 [2005]). "[T]o establish ineffective assistance, a Defendant must demonstrate the absence of strategic or other legitimate explanations' for counsel's allegedly deficient conduct" (People v Caban, 5 NY3d 143, 152 [2005] citing People v Rivera, 71 NY2d 705, 709 [1988]; People v Clarke, 66 AD3d 694 [2d Dept 2009]; People v Britton, 49 AD3d 893 [2d Dept 2008] lv denied 10 NY3d 956 [2008]; People v Atkins, 2013 NY Slip Op 4195 [4th Dept June 7, 2013]; People v Jones, 101 AD3d 1241 [3d Dept 2012] lv denied 2013 NY Slip Op 97780U [May 10, 2013]). The "meaningful representation" test is more favorable to a defendant in that it "focuses on the fairness of the process as a whole rather than its particular impact on the outcome of the case" (People v Ozuna, 7 NY3d 913, 915 [2006]; People v Georgiou, 38 AD3d 155 [2d Dept 2007] lv denied 9 NY3d 844 [2007]). The state standard for determining meaningful representation "does not require a Defendant to fully satisfy the prejudice test of Strickland,'" however under the "meaningful representation test" the courts will regard a Defendant's showing of prejudice as a significant but not indispensable element in assessing meaningful representation'" (People v Caban at [*5]155-156 citing People v Stultz, 2 NY3d 277, 283 [2004]; People v Georgiou, supra). As such, under the New York State Constitution "even in the absence of a reasonable probability of a different outcome, inadequacy of counsel will still warrant reversal whenever a Defendant is deprived of a fair trial." (People v Caban, supra). The Court of Appeals has recognized that the standard for effective assistance of counsel "is not stringent that it is in fact undemanding' and, in applying it, we have often tolerated errors by counsel where the overall representation was nonetheless capable of characterization as meaningful'" (People v Borrell, 12 NY3d 365 [2009] citing People v Turner, 5 NY3d 476, 482 [2005]).

In Padilla v Kentucky (130 S Ct 1473 [2010]) the United States Supreme Court found that in order to provide "effective assistance" defense counsel was required to advise a client regarding the risk of deportation as a possible result of entering a guilty plea.

In Padilla v Kentucky (130 S Ct 1473 [2010]), the United States Supreme Court found that defense counsel must advise clients regarding the risk of deportation as a consequence of entering a guilty plea. The United States Supreme Court found that a defense counsel's failure to inform a non-citizen defendant of the "truly clear" deportation consequences of pleading guilty to a particular charge prior to the defendant pleading guilty to said charge constituted a "constitutional deficiency" sufficient to satisfy the first prong of the Strickland standard i.e. that defense counsel's representation "fell below an objective standard of reasonableness" (See Padilla v Kentucky, 130 S Ct 1473, 1482-1484 [US 2010]). Upon showing he was not so advised prior to entering a guilty plea, a defendant is entitled to relief if he can also satisfy the second prong of the Strickland standard by establishing prejudice, that is but for the plea the Defendant would not have been deported (See Padilla v Kentucky, 130 S. Ct 1473, 1483 [US 2010]).

The New York Appellate Courts have adopted the Supreme Court of the United States' ruling in Chaidex v United States (133 S Ct 1103 [US Feb 20, 2013]) that Padilla v Kentucky (130 S Ct 1473 [2010]) is not retroactively applied to convictions finalized before March 31, 2010. Therefore, the Defendant has failed to satisfy the first prong of either the Federal Strickland test or the New York State standard for determining ineffective assistance of counsel.

Based upon a substantive review of decisions from the New York Appellate, Federal and lower courts, this Court had previously determined that the Supreme Court of the United States' decision in Padilla v Kentucky should only be applied retroactively to those pleas entered into after the 1996 amendments to the immigration law making deportation a clear and automatic consequence of pleading guilty to certain crimes (See People v Floyd F., 35 Misc 3d 1215A [Crim Ct, Kings County 2012]). This Court found that said limited retroactive application was consistent with the Appellate Courts' determinations that Padilla v Kentucky is retroactively applied to pleas entered into after the 1996 amendments to the immigration law (See People v Floyd F., supra; People v Nunez, 30 Misc 3d 55 [2d Dept 2010]); People v Baret, 99 AD3d 408 [1st Dept 2012]). However, since this Court's issuance of its decision in People v Floyd., the Supreme Court of the United States has determined that Padilla v Kentucky is not to be applied [*6]retroactively to any convictions finalized prior to 2010.

In Chaidez v US (133 S Ct 1103 [Feb 20, 2013]), the Supreme Court of the United States clarified that its holding in Padilla v Kentucky constituted a "new rule" under the standard set in Teague v Lane (489 US 288 [US 1989]). "Teague makes the retroactivity of our criminal procedure decisions turn on whether they are novel. When we announce a new rule,' a person whose conviction is already final may not benefit from the decision in a habeas or similar proceeding. Only when we apply a settled rule may a person avail herself of the decision on collateral review." (Chaidez v United States, 133 S. Ct 1103, 1107 [US 2013]). As the Supreme Court of the United States announced a new rule in Padilla v Kentucky, "[u]nder Teague, defendants whose convictions became final prior to Padilla therefore cannot benefit from its holding" (Chaidez v United States, 133 S. Ct 1103, 1113 [US Feb 20, 2013]).

Since the Supreme Court of the United States' decision in Chaidez v United States, the New York Appellate Division for the First Department has adopted the Supreme Court's determination that Padilla v Kentucky has no retroactive effect, and has overturned a lower court decision granting a 440.10 motion for a conviction that was finalized prior to the issuance of Padilla v Kentucky. The Appellate Court ruled that since the Supreme Court determined in Chaidez v United States that Padilla announced a new rule, said decision dictates that Padilla v Kentucky has no retroactive application (See New York v Verdejo, 2013 NY Slip Op 4913 [1st Dept June 27, 2013] citing Chaidez v United States, 133 S. Ct 1103 [US Feb 20, 2013]). This Court finds the Appellate Court's adoption of the Supreme Court of the United States' decision in Chaidez v United States to be compelling and correct Further, multiple lower courts have also adopted the Supreme Court's finding that Padilla v Kentucky has no retroactive application (See People v Osario, 2013 NY Slip Op 30822U[Sup Ct, Kings County 2013]); People v Alegria, 2013 NY Slip Op 30448U [Sup Ct, Kings County Mar. 1, 2013]; People v Vatic, 2013 NY Slip Op 50909U [Sup Ct, Bronx County 2013]; People v Carabai, 39 Misc 3d 1206A [Crim Ct, Bronx County 2013]). In the absence of any determinations by the Court of Appeals or the other Appellate Courts to the contrary in the time since the Supreme Court's decision in Chaidez v United States, this Court finds that Padilla v Kentucky has no retroactive application.

In the instant motion the Defendant is moving to vacate three convictions that were finalized on August 21, 2007, May 5, 2008 and October 22, 2008 respectively. As all of these convictions were finalized prior to the Supreme Court's decision in Padilla v Kentucky, the Defendant has failed to show that his prior attorneys' performances were not reasonable under the prevailing professional norms at the time the Defendant plead to guilty in each of the three underlying criminal actions.

Accordingly, the Defendant has failed to satisfy the first prongs of both the Federal Strickland test and the New York State standard for determining ineffective assistance of counsel as to each of the three underlying criminal actions.

The Defendant has failed to show that he was prejudiced by his three prior Defense counsel's alleged failures to inform him of the potential immigration consequences prior to pleading guilty in the three underlying criminal actions. [*7]

Even assuming arguendo that the Defendant had satisfied the first prong of the Federal Strickland test, he has failed to establish that he was actually prejudiced by his prior defense counsel's alleged failures to inform him of the immigration consequences of pleading guilty in each of the three underlying criminal cases.

This Court has previously highlighted that Padilla v Kentucky did not include any ruling by the Supreme Court of the United States as to what evidentiary proof would be required to establish that Padilla was actually prejudiced by being subject to "truly clear" deportation consequences (See People v Floyd F., 35 Misc 3d 1215A [Crim Ct, Kings County 2012]). Specifically, in Padilla v Kentucky the Supreme Court made no ruling as to the second prong of Strickland and referred the matter back to the Kentucky courts to determine if the Defendant was prejudiced by his counsel's failure to advise him as to deportation. As stated in its previous decision, upon a review of the New York State court cases wherein a defendant has moved to vacate a conviction pursuant to CPL 440.10 on the basis of Padilla v Kentucky, this Court can find no jurisdictionally authoritative cases indicating that a defendant was able to establish prejudice despite the fact that no deportation proceedings had been commenced. Further, there were numerous lower court cases wherein the lower courts questioned whether or not a defendant could establish actual prejudice where deportation proceedings had not been commenced (See People v Floyd F., 35 Misc 3d 1215A [Crim Ct, Kings County 2012]).

In the instant case, the Defendant has given the Court insufficient bases to determine that he is subject to or even potentially subject to "truly clear" deportation consequences. Defense counsel has not indicated to the Court that any deportation proceedings have been commenced against the Defendant. More importantly, the Defendant has given no bases for his conclusion that his convictions in the three underlying criminal actions could possibly result in his removal for the United States. The Defendant merely concludes that said convictions could possibly result in his deportation and/or adversely effect his status as a permanent legal resident of the United States, without referring to case law or a single statute in support of said conclusion. Specifically, the Defendant has failed to show how three convictions to Penal Law § 240.20, which is a violation and not a crime, could ever result in his deportation. The Defense also indicates in the moving papers that the Defendant is currently a "legal permanent resident under the Immigration Laws and Procedures". Although the Defense does not indicate whether the Defendant obtained said status prior to or at some time following any of the three convictions, the fact that the Defendant is currently a legal permanent resident of the United States strongly suggests that he is not subject to deportation based upon his convictions of Penal Law § 240.20 in the three underlying criminal actions.

Further, Defense counsel does not indicate in his affirmation nor does the Defense attach with the moving papers an affidavit by the Defendant indicating that the Defendant would not have plead guilty to Penal Law § 240.20 in the three underlying criminal cases had he been informed of any potential immigration consequences. The motion papers are also devoid of any indication that had the Defendant rejected the guilty pleas and gone to trial, he would have prevailed. It is significant to note that the Defendant does not claim innocence to the original charges against him in the three underlying criminal actions, the charges he plead guilty to, nor does he set forth any viable defenses to said charges (See People v Hayes, 186 AD2d 268 [2d Dept 1992] citing United States v Tiler, 602 F.2d 30 [2d Cir NY 1979]; see also People v Clark, 254 AD2d 299 [2d Dept 1998]; People v DeFayette, 241 AD2d 761 [3d Dept 1997] lv denied 90 NY2d 939 [1993]; People v Picca, 29 Misc 3d 997 [Sup Ct, Kings County 2010]) [*8]

Therefore, this Court finds that the Defendant has failed to establish that he suffered any prejudice due to his prior attorneys' alleged failures to inform him of the potential immigrations consequences prior to the Defendant pleading guilty to Penal Law § 240.20 in each fo the three underlying criminal actions.

The Defendant has failed to show that he was denied meaningful representation under the second prong of the New York State standard for effective assistance of counsel.

Upon review of the submitted papers, the Court also finds that Defendant's prior counsel all provided him with "meaningful representation" under the New York State standard for effective assistance of counsel in each of the three underlying criminal actions. In each of the three underlying criminal actions, the highest charge against the Defendant was Penal Law § 221.10, a Class B misdemeanor which carries a potential sentence of up to three months incarceration (Penal Law § 70.15[2]). The plea agreements negotiated by the Defendant's prior counsel in each of the three underlying cases resulted in three extremely favorable dispositions whereby the People dropped the charges of Penal Law § 221.10 and the Defendant was allowed to plead to Penal Law § 240.20, which is a violation and not a crime. Further, the Defendant was sentenced to time served in each of the three underlying criminal actions, and as such did not face any additional incarceration.

Therefore, this Court finds that the Defendant has failed to establish that he was denied "meaningful representation" under the New York State standard for effective assistance of counsel.

Accordingly, the Defendant's motion pursuant to CPL 440.10 to vacate the three convictions entered against him under docket numbers 2007KN066005, 2008KN033846 and 2008KN078826 based upon his corresponding guilty pleas is hereby denied in its entirety.

The foregoing constitutes the Order and Decision of the Court.

_________________________________________________________________________

DateHON. Robert D. Kalish

Judge, Criminal Court