People v Figari

[*1] People v Figari 2013 NY Slip Op 51369(U) Decided on August 23, 2013 Supreme Court, Bronx County Barrett, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 23, 2013
Supreme Court, Bronx County

The People of the State of New York, Plaintiff,

against

Cesar Vargas Figari, Defendant.



1364/11



Ravi Kantha, Assistant District Attorney, Office of the Bronx County District Attorney

Scott Brettschneider for the Defendant, Carlos Vargas Figari

Steven L. Barrett, J.

On April 6, 2011, defendant was arrested and charged in a felony complaint with Criminal Possession of a Controlled Substance in the Second Degree (a class A-II felony) and other lesser narcotics possession charges based upon his alleged possession of over four ounces of heroin. On May 4, 2011, by Indictment 1364/11, defendant was charged with one count of Criminal Possession of a Controlled Substance in the Second Degree (PL 220.18(1)(possession of over 4 ounces) and one count of Criminal Possession of a Controlled Substance in the Third Degree (PL 220.16(1)(possession with intent to sell). On February 2, 2012, based upon his counsel, Anthony Ventura, Esq., having worked out a resolution of the case that was acceptable to the People and approved by the Court, defendant consented to waive indictment and to be prosecuted by a superior court information, which charged him with one count of Attempted Criminal Possession of a Controlled Substance in the Fifth Degree (PL § 220.06(2), a class E felony).[FN1] After being allocuted by the Court as to waiver of indictment and prosecution by Superior Court information, defendant pled guilty to Attempted Criminal Possession of a Controlled Substance in the Fifth Degree based upon a sentence promise of two years imprisonment and one year of post-release supervision.[FN2] On February 21, 2012, defendant was sentenced as promised. Defendant has not filed a notice of appeal from the judgment of conviction.

On August 9, 2012, the United States Department of Homeland Security, Bureau of Immigration and Customs Enforcement, issued defendant, a resident alien native of the Dominican Republic, a Notice to Appear (NTA) for removal proceedings. The NTA alleges defendant is subject to removal from the United States pursuant to 8 U.S.C. § 1227(a)(2)(C) [*2]based upon his 2002 gun possession conviction, and 8 U.S.C. § 1227 (a)(2)(B)(1) based upon his 2012 narcotics possession conviction.

Defendant now seeks to have this Court vacate the instant judgment of conviction claiming that his plea violated the New York State Constitution and CPL § 195.10(2)(b) because the waiver of indictment came after he had already been indicted, and that he received ineffective assistance of counsel because Mr. Ventura permitted him to plead guilty to a charge that will result in his deportation. For the reasons stated below, defendant's motion is denied.

Initially, defendant's first claim regarding his plea being defective is record-based, and therefore could have been raised on direct appeal. Defendant's unjustified failure to perfect an appeal in which this issue could have been raised requires this Court to deny this aspect of defendant's motion. See CPL 440.10(2)(c); People v. Cuadrado, 9 NY3d 362 (2007)(failure to raise complaint regarding waiver of indictment on direct appeal results in it being procedurally barred from collateral attack). In any event, this claim is devoid of merit. Defendant contends that his waiver of indictment was ineffective because CPL 195.10(2)(b) requires a waiver to be made before the filing of an indictment by the Grand Jury. However, contrary to defendant's contention, his waiver, in fact, satisfied the requirements of the Criminal Procedure Law because, when he waived indictment, he was being held for Grand Jury action on a new felony complaint charging him with a new charge of criminal possession of a controlled substance in the fifth degree. Thus, the fact that he had already been indicted on related charges did not vitiate the waiver of indictment. See People v. D'Amico, 76 NY2d 877 (1990); People v. Verrone, 266 AD2d 16 (1st Dept. 1999)(affirming Judge Donnino's acceptance of a waiver of indictment and plea to bail jumping where new felony complaint filed charged defendant with bail jumping, whereas earlier indictment charged sex abuse).

Defendant next argues that plea counsel Mr. Ventura was ineffective, notwithstanding the beneficial plea and sentence he received, because Mr. Ventura failed to warn him adequately of the immigration consequences of his plea. Specifically, defendant contends that both Mr. Ventura and John Nicelli, Esq., an immigration lawyer he had retained,[FN3] misadvised him that if he pled guilty to attempted criminal possession in the fifth degree he would not be deported. Defendant further maintains that had he been given correct advice regarding the immigration consequences of his plea he would not have pled guilty, but instead would have continued plea negotiations until a plea to a "non-deportable charge" could be entered. Defendant's claim is unavailing.

In support of his argument, defendant submits with the instant motion affidavits from his sister, Aedee Lantigua, and his immigration lawyer, Mr. Nicelli. In her affidavit, Ms. Lantigua avers that she has been very involved in her brother's defense and that she consulted with Mr. Nicelli regarding the instant case. According to Ms. Lantigua, Mr. Nicelli told her and defendant that a guilty plea to attempted criminal possession of a controlled substance would "preclude deportation". Based on Mr. Nicelli's advice, defendant decided to plead guilty and this decision was then conveyed to Mr. Ventura. Ms. Lantigua also avers that neither Mr. Ventura nor Mr. [*3]Nicelli informed defendant that a statement he allegedly made to police at the time of his arrest could be used against him at the deportation proceedings.

In his affidavit, Mr. Nicelli swears that he is an attorney who is authorized to practice before the U.S. Immigration Courts and federal agencies with authority over immigration. Mr. Nicelli was retained by defendant to represent him with respect to his immigration status in light of the criminal charges pending against him. Mr. Nicelli states that he was aware of the charges in the original felony complaint and indictment and that he informed Mr. Ventura that defendant could not plead guilty to any charge involving the sale or distribution of any narcotic drug because such charges are considered aggravated felonies under the immigration law to which there is no relief from removal from the United States. Mr. Nicelli's affidavit is silent as to what, if anything, he informed defendant, defendant's sister, or Mr. Ventura, regarding the consequences of a plea to a charge based solely upon possession and the weight of the drugs possessed (simple possession), including attempted criminal possession of a controlled substance in the fifth degree.[FN4]

In addition to the affidavits of Ms. Lantigua and Mr. Nicelli, also included in defendant's motion are the minutes of the plea proceedings.[FN5] After a full allocution regarding the rights he was giving up by pleading guilty, defendant admitted that on April 16, 2011, in Bronx County, he attempted to possess over one-half ounce of heroin. After the Court accepted the plea, Mr. Ventura brought to the Court's attention that defendant is a lawful permanent resident of the United States. The Court then warned defendant that there may be consequences to his immigration status by reason of his plea and conviction and that deportation is not necessarily precluded by virtue of his plea. The Court then asked defendant if he had thought about, and spoken to his lawyer about, the immigration consequences of pleading guilty. Defendant answered, "Yes," to both questions. Mr. Ventura then placed on the record that defendant had hired Mr. Nicelli, an attorney specializing in immigration matters, and that defendant and his family conferred with Mr. Nicelli about the possible immigration consequences of his plea. Defendant then stated, in light of the possible immigration consequences, that he still wished to plead guilty. [*4]

Included in the People's response is an affidavit from Mr. Ventura. In it, Mr. Ventura recounts defendant's and his family's general satisfaction with his ability to negotiate a plea to an E felony and the imposition of the minimum sentence permissible. Mr. Ventura states that he initially told defendant it was his belief that a person with defendant's background would be deported if he pled guilty to any narcotics violation. However, because of his lack of expertise and the importance of this issue to defendant, Mr. Ventura urged defendant to confer with an immigration attorney. Subsequently, Mr. Ventura was contacted by Mr. Nicelli, who told Mr. Ventura that he had been retained by defendant. Mr. Nicelli informed Mr. Ventura that a guilty plea to a simple possession charge, one which did not entail an intent to sell, would substantially increase defendant's chances of not being deported. Similarly, defendant informed Mr. Ventura that Mr. Nicelli had told him and his family that a plea to a simple felony possession charge would keep him from being deported. Mr. Ventura states that he never discussed with defendant what evidence the immigration authorities would consider in determining whether to deport defendant. Mr. Ventura concludes that he never offered his opinion to defendant as to whether he would be deported as a result of his plea; instead, Mr. Ventura relied on Mr. Nicelli's opinion with respect to this issue.

According to Padilla v. Kentucky, 130 S. Ct. 1473, 1483 (2010), a criminal defense attorney must provide advice in the specialized area of immigration law in those cases in which the immigration law is succinct, clear, and explicit in defining the removal consequences of a conviction.[FN6] However, where the deportation consequences of a particular guilty plea are unclear or uncertain, the duty of the criminal defense attorney is to "do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences." Id. at 1483.[FN7]

In Padilla, the defendant was transporting a large amount of marijuana in his tractor-trailer and pled guilty to felony drug distribution. Notwithstanding the numerous provisions of the immigration law involved in determining whether Padilla's conviction subjected him to mandatory deportation, the Court found, simply from reading the text of the relevant federal statutes, that Padilla's crime, which involved the distribution of a controlled substance, clearly fell within the definition of drug trafficking for which deportation is mandatory.[FN8] Having reached [*5]this conclusion, the Court then held that Padilla's attorney's failure to advise him that deportation was mandatory prior to his plea was deficient representation.

Here, however, the text of the federal immigration laws is neither clear nor certain. Unlike the defendant in Padilla who pled guilty to felony drug distribution, defendant here pled guilty to simple possession of a quantity of controlled substance. And, as Justice Alito alluded to in his concurrence in Padilla, a reading of the various provisions of the immigration law to ascertain whether simple possession is an aggravated felony for purposes of qualifying for discretionary cancellation of removal provides an attorney untrained in immigration law with no easy answer. See Padilla, supra, at 1489; see also Lopez v. Gonzalez, 549 U.S. 47, 53 (2006)(simple possession does not fall within ordinary meaning of illicit trafficking because the everyday understanding of trafficking means some sort of commercial dealing); Carachuri-Rosendo v. Holder, 130 S. Ct. 2577, 2585 (2010)("a reading of this statutory scheme that would apply an aggravated or trafficking label to any simple possession offense is, to say the least, counterintuitive and unorthodox."). Indeed, as noted earlier (see footnote 4), even the immigration judge who is assessing defendant's status believed it necessary to go beyond the text of the statute, and to examine the record of conviction and the indictment, which includes the charge of possession with intent to sell, in order to determine if defendant's conviction disqualifies him from discretionary cancellation of removal. Quite clearly, if a jurist specializing in immigration law could not determine the deportation consequences of defendant's guilty plea from a simple reading of the text of the governing federal statutory provisions, it could not be expected that an attorney untrained in immigration law could do so. Because the immigration law pertaining to defendant's plea was anything but succinct, clear, and explicit, plea counsel was constitutionally obliged only to advise defendant that his plea to attempted criminal possession of a controlled substance in the fifth degree might carry a risk of adverse immigration consequences.[FN9] See Padilla, supra at 1483; People v. Marino-Affaitati, 88 AD3d 742, 744 (2d [*6]Dept. 2011)(unclear from defendant's plea to conspiracy in the fourth degree that his plea subjected him to mandatory deportation, thus, defense counsel's advice that plea might carry risk of deportation was not deficient).

Thus, when Mr. Ventura initially told defendant that it was his belief that a person with defendant's background would be deported if he pled guilty to any narcotics violation, he fulfilled his Sixth Amendment obligation as interpreted by the Supreme Court in Padilla. Defendant's contention to the contrary — that Mr. Ventura misadvised him that he would not be deported upon his plea to attempted criminal possession of a controlled substance in the fifth degree — is not supported by sworn allegations substantiating this claim. Curiously, defendant has failed to proffer his own affidavit detailing what advice he received from Mr. Nicelli and/or Mr. Ventura regarding the immigration consequences of his plea. Instead, defendant attempts to establish his claim through the affidavits of his sister, Ms. Lantigua and his immigration attorney, Mr. Nicelli. Ms. Lantigua's affidavit states only that it was Mr. Nicelli's advice that a plea to attempted criminal possession of a controlled substance in the fifth degree would preclude deportation. Mr. Nicelli does not corroborate having given such advice or even having told defendant anything regarding the possible consequences of pleading guilty to any of the counts charging him with simple possession; Mr. Nicelli acknowledges advising defendant and his family that defendant could not plead guilty to any count charging him with sale or distribution of a narcotic drug. Further, Mr. Ventura, in his affidavit, states that after initially warning defendant that he would be deported if he pled guilty to any narcotics offense, he strongly suggested that defendant speak to an immigration attorney. After being informed of Mr. Nicelli's opinion regarding the plea at issue, and after being told by defendant that Mr. Nicelli said that a plea to simple possession would keep him from being deported, Mr. Ventura offered defendant no further advice regarding the immigration consequences of his plea. Because defendant's papers fail to contain sworn allegations substantiating that Mr. Ventura failed to counsel him or gave him misadvice regarding the immigration consequences of his plea, his motion is denied. See CPL 440.30(4)(b).[FN10]

Mr. Ventura went above and beyond what was constitutionally required. Just as Justice Alito advised in his concurring opinion, Mr. Ventura urged defendant to consult with a specialist in immigration law, and then he crafted a creative plea in conformity with that attorney's advice: to the lowest level felony; with the minimum sentence for that class of crime for someone with defendant's background; and one that afforded defendant the greatest chance of not being removed. See Padilla, supra, at 1494 (Alito, J., concurring). Under these circumstances, it is hard to see how Mr. Ventura's representation could be considered deficient.[FN11] [*7]

Even if Mr. Ventura's advice regarding the immigration consequences of defendant's plea renders his representation deficient, defendant has failed to establish that he was prejudiced by any such deficiency. Initially, the Court notes that it warned defendant of the possibility of deportation and that defendant still entered his guilty plea. Thus, if neither Mr. Ventura nor Mr. Nicelli put defendant on notice that his guilty plea could lead to deportation, the Court clearly did. See United States v. Bhindar, 2010 WL 2633858 (SDNY 2010); see also People v. Diaz, 92 AD3d 413, 414 (2d Dept. 2012)(court's warning sufficed to apprise defendant that the consequences of his guilty plea extended to immigration status). Moreover, defendant failed to establish prejudice because, even if he was misadvised regarding the immigration consequences of his drug possession conviction, the NTA indicates that he was still eligible for deportation based upon his prior gun possession conviction. See People v. Haley, 96 AD3d 1168, 1169 (3d Dept. 2012)(prejudice not established where record reflects that defendant had other convictions which rendered him deportable). Finally, the Court is hard-pressed to see how defendant was prejudiced given the favorable plea bargain that Mr. Ventura obtained on his behalf. Defendant, who received a 2 year determinate sentence, as a predicate felon with a prior violent felony conviction was facing a maximum determinate sentence of 17 years if convicted of the top count in the indictment charging him with criminal possession of a controlled substance in the second degree, an A-II felony. While the Court does not diminish the seriousness of the collateral consequence of deportation, given defendant's sentence exposure, the Court rejects as incredible defendant's claim that had he known he would likely be deported, he would not have accepted the instant plea and sentence bargain. See People v. McDonald, 1 NY3d 109,115 (2003) citing Hill v. Lockhart, 474 U.S. 52, 59 (1985)(prejudice established if there is a reasonable possibility that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial).[FN12]

For the reasons stated above, defendant's motion to vacate his judgment of conviction is denied in all respects.

This constitutes the decision, opinion and order of the court. [*8]

Dated:______________________

Bronx, New YorkSTEVEN BARRETT, AJSC Footnotes

Footnote 1:On consent of defendant, the SCI was consolidated with the indictment, and the counts in the indictment charging defendant with Criminal Possession of a Controlled Substance in the Second and Third Degree and the felony complaint charging defendant with Criminal Possession of a Controlled Substance in the Fifth Degree were then dismissed (the felony complaint was filed after the indictment, but prior to the filing of the SCI).

Footnote 2:Defendant was adjudicated a predicate felon based upon a 2002 conviction for Criminal Possession of a Weapon in the Third Degree.

Footnote 3:Though defendant was represented by assigned counsel in these proceedings having represented that he qualified for free counsel on the basis of indigency, he appears to have located sufficient funds thereafter to retain Mr. Nicelli as his counsel with respect to immigration issues.

Footnote 4:In addition to advising defendant prior to his plea, Mr. Nicelli has continued to represent defendant at the removal proceedings. In this regard, Mr. Nicelli avers that, on November 20, 2012, he appeared on defendant's behalf before Immigration Judge Sagerman. At the hearing, the immigration authorities introduced into evidence various documents, including the sentence and commitment report and a copy of the indictment (presumably with respect to the instant case). According to Mr. Nicelli, this evidence can be considered by the immigration judge in determining whether defendant was convicted of an aggravated felony, and, because the indictment shows defendant was charged with possession with intent to sell a controlled substance, defendant will likely be deported.

Footnote 5:Although defendant includes affidavits from Ms. Lantigua and Mr. Nicelli, and the plea minutes, conspicously absent from his motion papers are affidavits from himself and Mr. Ventura. As will be detailed shortly, the People do include an affidavit from Mr. Ventura.

Footnote 6:Because defendant's conviction became final after the Supreme Court's decision in Padilla, the Padilla holding is clearly applicable to this case.

Footnote 7:As will be shown, Justice Alito's forewarning that "this vague, halfway test will lead to much confusion and needless litigation" appears to have been rather prescient. See Padilla (Alito, J., concurring), supra at 1487.

Footnote 8:Under the governing federal immigration statutory provisions an alien who has been convicted of any violation, or a conspiracy or attempt to violate, any State or Federal law related to a controlled substance, other than possession of less than 30 grams of marijuana, is deportable. 8 U.S.C. § 1227(a)(2)(B). However, the Attorney General may cancel removal in the case of an alien who is deportable, if such alien has been admitted for permanent residence for not less than 5 years, has resided in the U.S. continuously for 7 years after having been admitted, and has not been convicted of any aggravated felony. 8 U.S.C. § 1229b(a). Amongst many other crimes, the term aggravated felony includes illicit trafficking in a controlled substance, including a drug trafficking crime as defined in section 924(c) of Title 18. Section 924(c) defines drug trafficking as any felony punishable under the Controlled Substances Act (CSA). Finally, the CSA defines a range of drug-related felonies under federal law, including the manufacture and distribution of a controlled substance and the possession of a controlled substance with intent to distribute it, 21 U.S.C. § 841-3; however, under the CSA, most first-time simple possession offenses, including the offense to which defendant pled guilty, are punished as misdemeanors. 21 U.S.C. 844(a).

Footnote 9:In fact, based on Lopez and Carachuri-Rosendo cited in the text above, it can be argued, based upon the text of the statute, that defendant's plea qualifies him for discretionary cancellation of removal. Although the immigration judge assessing defendant's status appears to have examined the indictment here, which includes the charge of possession with intent to sell, a very recent Supreme Court decision, not available at the time of defendant's removal hearing in November, strongly suggests that in determining whether defendant's plea to a drug possession offense still renders him eligible for discretionary cancellation of removal, the immigration court is limited to examining the record of conviction. See Moncrieffe v. Holder, 133 S. Ct. 1678 (2013).

Footnote 10:As shown in the previous two footnotes, even had Mr. Ventura so advised defendant that his plea would not subject him to deportation, that advice might end up being correct.

Footnote 11:Even if we assume for the sake of argument that Mr. Nicelli misadvised defendant that his plea would not subject him to deportation, it would still be of no moment regarding whether Mr. Ventura's representation was effective. As the People point out, to decide otherwise would put the onus on criminal defense attorneys to not only ensure that an immigration attorney is consulted, but to guarantee that the advice received from such specialists was accurate. Such a rule is counterintuitive. Here, where Mr. Ventura did not refer defendant to Mr. Nicelli, but only urged defendant to confer with an immigration attorney regarding the immigration consequences of pleading guilty, it is particularly inappropriate to impute any misadvice Mr. Nicelli gave defendant to Mr. Ventura. Certainly, defendant may still pursue any civil remedies he may have against Mr. Nicelli; however, the Court again notes that even if Mr. Nicelli, in fact, stated that a plea to simple possession precludes deportation, Mr. Nicelli may yet be proven to have given correct advice (see footnotes 8 and 9).

Footnote 12:It should be noted that nowhere in his motion does defendant claim that he is innocent of the charges and that he would have opted for trial had he been correctly forewarned of the immigration consequences of his plea. Defendant merely claims that he would have continued to negotiate with the prosecutor until a plea to a "non-deportable charge" could be entered. The possibility of such a plea being offered and the Court's acceptance of such a plea is nothing more than sheer conjecture.