People v Navas

[*1] People v Navas 2013 NY Slip Op 51517(U) Decided on September 9, 2013 Supreme Court, Queens County Koenderman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 9, 2013
Supreme Court, Queens County

The People of the State of New York

against

Manuel Navas, Defendant



1203/2012



Attorney for defendant:

Andrew Friedman

Attorney for the People:

ADA Edward Saslaw

Elisa S. Koenderman, J.

The defendant, Manuel Navas, moves pursuant to Criminal Procedure Law ["CPL"] § 440.10(h) to vacate his judgment of conviction of Burglary in the Third Degree, Penal Law ["PL"] § 140.20, under Superior Court Information No. 1203/2012, and of Criminal Contempt in the Second Degree, PL § 215.50(3), under Docket No. 2012QN013195, on the ground that they were obtained in violation of his right to the effective assistance of counsel. Specifically, he contends that his attorney erred by advising him that deportation was a likely, rather than a mandatory, consequence of his conviction and that had he been apprised that deportation was an "inevitable certainty," he would not have pleaded guilty but insisted upon going to trial. Because the allegations of fact essential to sustain the motion are made solely by the defendant, are unsupported by any other evidence, are contradicted by the court record, and under all of the circumstances are not reasonably possible to be true, the defendant's motion is denied without a hearing (see CPL § 440.30[4][d]).

On January 24, 2012, the defendant was arrested and charged with Burglary in the Second Degree (PL § 140.25[1][b], [2]), Assault in the Second Degree (PL §120.05[12]), Sexual Abuse in the Third Degree (PL § 130.55), and other offenses arising from an incident which allegedly occurred on January 21, 2012 in Queens County. The defendant was accused of entering the seventy-eight (78) year-old complainant's home by purporting to be a maintenance worker, and then forcibly kissing her, pushing her to the floor and straddling her. The complainant suffered bruising and swelling to her arm and shoulder as a result. The defendant was released on his own recognizance at arraignment.

Thereafter, on March 7, 2012, the defendant was arrested and charged with Criminal Contempt in the Second Degree (PL § 215.50[3]), predicated upon a violation of an order of protection issued against him on behalf of his wife on an underlying criminal case. The [*2]defendant was accused of going to his wife's home and yelling at her in defiance of a provision in the order directing him to stay away from her. Bail was set at arraignment in the amount of $1500 insurance company bail bond or cash. Shortly after the defendant was arraigned, Immigration and Customs Enforcement ["ICE"] lodged a detainer against the defendant. That detainer was pending on the date that the defendant entered the instant guilty pleas.

On April 23, 2012, under oath, the defendant waived prosecution by indictment and pleaded guilty, under a Superior Court Information, to Burglary in the Third Degree, a class D felony, in exchange for a promised sentence of one year in jail. The defendant also pleaded guilty, under a misdemeanor information, to Criminal Contempt in the Second Degree, in exchange for a promised sentence of 60 days in jail, to run concurrent with his felony sentence. Prior to the entry of the plea, the People served the defendant with a written Notice of Immigration Consequences. The Notice of Immigration Consequences, which is written in both English and Spanish, states that "if you are not a United States citizen, your conviction of any crime either by plea of guilty or conviction after trial may subject you to removal or exclusion from the U.S." The assigned assistant district attorney then clarified, "for the record it's my understanding there's an immigration hold, so I'm serving the notice of immigration form upon counsel so he can have an opportunity to discuss it with his client." The defendant's plea counsel responded "I have already discussed the immigration consequences with my client. He understands that he's likely to be deported based on this plea and he nonetheless wishes to proceed with the plea and sentence." The Court then asked the defendant "did you discuss the immigration and deportation consequences of pleading guilty on these cases with your attorney," and the defendant answered "yes." The Court then asked "and you heard him say that he advised you that there is a likely deportation consequence from taking these pleas and that you wanted [sic] to plead guilty nonetheless, is that true," to which the defendant replied "yes."During the plea allocution, the defendant acknowledged that he had discussed pleading guilty with his attorney and that no one had forced or threatened him to plead guilty, or promised him anything in exchange for his guilty plea. Further, the defendant averred that he was pleading guilty freely and voluntarily, and that he understood that by pleading guilty he was giving up his constitutional rights to a jury trial, to confront the witnesses against him, and to have the prosecution prove his guilt beyond a reasonable doubt at trial. The defendant also acknowledged that he was pleading guilty because he was guilty and admitted that on or about January 21, 2012 in Queens County, he knowingly entered or remained unlawfully in the complainant's building with intent to commit a crime therein. The Court further asked the defendant whether he understood that "if you are not a citizen of the United States, a plea of guilty in this case may subject you to involuntary deportation, exclusion from admission to this country or denial of naturalization," to which the defendant replied "yes." Lastly, the defendant acknowledged that after discussion with his attorney, he executed a written waiver of his right to appeal the instant conviction, and that he understood that by doing so he was giving up his right to complain to a higher court that there was error in the plea or sentence proceeding[FN1]. The Waiver of Right to Appeal and Other Rights states that "I also understand that if I am not a U.S. citizen, my [*3]plea may result in my deportation, exclusion from admission to the U.S., or denial of naturalization, and I wish to enter into the plea agreement notwithstanding any immigration or deportation consequence."

Now, relying on Padilla v Kentucky, 559 US 356, 130 S Ct 1473, 1478 (2010), the defendant claims that his plea counsel was ineffective because he failed to advise him that deportation was a mandatory consequence of his conviction. He contends that his attorney assured him that while deportation was likely, "it was not mandatory and that it was possible that Immigration would elect not to deport me from the United States." He asserts that he pleaded guilty "under the mistaken belief that the institution of proceedings to remove me from the United States was discretionary when in fact deportation proceedings were a definite consequence of my criminal convictions." Thus, he asks the Court to vacate his judgment of conviction.

The defendant has offered nothing but his own self-serving declarations in support of his claim that his attorney misadvised him regarding the immigration consequences of his conviction. Conspicuously absent is an affidavit from the defendant's plea counsel to corroborate his allegations. Moreover, the defendant's contention that he did not know that his guilty plea would subject him to mandatory deportation is belied by the record. An ICE detainer was lodged against the defendant as of March 26, 2012 and was pending when he entered his plea. As evidenced by the extensive colloquy on the record, the effect of the defendant's guilty plea upon his immigration status was first and foremost upon the minds of all of the parties to the plea agreement. First, the People served the defendant with a written Notice of Immigration Consequences. Next, the defendant's plea counsel stated that he had discussed immigration and deportation consequences with the defendant. Then the Court asked the defendant whether he had discussed immigration and deportation consequences with his attorney and if he wanted to plead guilty nonetheless, to which the defendant answered yes. During the ensuing plea allocution, the defendant reiterated, under oath, that he understood that pleading guilty might subject him to involuntary deportation. Further, the defendant executed a written Waiver of His Right to Appeal and Other Rights, stating that he wished to plead guilty even though he understood that his plea might result in his deportation. Thus the record reveals that the defendant was well informed that pleading guilty rendered him removable from the United States.

The defendant's argument that his conviction should be vacated because his plea counsel told him that it was "likely" that he would be deported, leading him to believe that his deportation was discretionary rather than mandatory, is a spurious attempt to avoid an anticipated consequence of his conviction by parsing words.

Padilla demands that a non-citizen defendant's attorney correctly advise him about the potential immigration consequences of pleading guilty (Padilla, 130 S Ct at 1482-1483). Where deportation consequences are unclear or uncertain, however, "counsel need do no more than advise the defendant that the plea could have adverse immigration consequences" (People v Marino-Affaitati, 88 AD3d 742, 743 [2d Dept 2011]; see Padilla, 130 S Ct at 1483). "Deportation consequences" refer to the risk of deportation (see Padilla, 130 S Ct at 1482), which is distinct from the result, i.e., removal from the United States. Although competent defense counsel must advise his client of a "truly clear" risk of deportation (id. at 1483), he cannot be expected to accurately predict the result of a future removal proceeding in a different forum and [*4]jurisdiction. Here, as the defendant was aware, he faced a clear risk of deportation based upon his guilty pleas. Nevertheless, whether his guilty pleas alone made him ineligible for cancellation of removal, as the defendant contends, depends not only upon whether his convictions constitute disqualifying offenses[FN2] (see 8 USCA § 1229b[b][1][C]) but upon whether the defendant was precluded from such discretionary relief on other grounds, i.e., because he could not demonstrate that he was "physically present in the United States for a continuous period of not less than ten years[FN3]" or that he was "a person of good moral character during such period[FN4]" (8 USCA § 1229b[b][1]). While the risk of deportation based upon his guilty pleas was clear, the defendant's removal from the United States depended upon factors beyond his attorney's ken and control. Consequently, the defendant's plea counsel rightly told him that he was "likely" to be deported.

Indeed, in contrast to Padilla, this advice was not an "affirmative misrepresentation" about the immigration consequences of his guilty pleas (People v Argueta, 46 AD2d 46, 51 [2d Dept 2007]). Rather, the defendant's plea counsel "correctly apprised the defendant that he could be deported as a result of his guilty plea[s]" (id.). Thus, "irrespective of whether deportation was a certainty," counsel's advice "was not misleading, but rather served to put the defendant on notice that his guilty plea[s] had potential immigration consequences" (People v Contant, 77 AD3d 967, 969 [2d Dept 2010] [internal citations omitted], revd on other grounds 84 AD3d 977 [2d Dept 2011], mod 90 AD3d 779 [2d Dept 2011], lv denied 98 AD3d 1133 [2d Dept 2012]). Moreover, the defendant never asked for an opportunity to explore immigration consequences further either with his attorney or with an immigration specialist (see id.; see also Argueta, 46 AD3d at 51).

Furthermore, although the duty under Padilla to advise the defendant of immigration consequences extends only to defense counsel, the Court complied with its statutory obligation to notify the defendant about the possibility of deportation before accepting his plea (see People v Diaz, 92 AD3d 413, 413-414 [1st Dept 2012]; CPL § 220.50[7]). Contrary to the defendant's contention, the Court did not compound [*5]counsel's error by echoing the advice that the defendant was "likely" to be deported. Because the Court's warning instead "sufficed to apprise the defendant that the consequences of his guilty plea extended to his immigration status" (id. at 414), the defendant cannot show that he was prejudiced by his attorney's performance (see People v Figari, 40 Misc 3d 1232(A), 2013 NY Slip Op 51369[U] [Sup Ct, Bronx County 2013]); United States v Bhindar, 2010 WL 2633858 [SDNY 2010]).

Finally, the defendant's assertion that had he known that he would be deported because of his guilty plea he would have insisted upon going to trial lacks credibility under all of the facts and circumstances of the case. The defendant was originally charged in two separate accusatory instruments, one of which was a felony complaint, with unrelated offenses against two different complainants. Had the defendant been indicted on the felony complaint, and were he to have been convicted after trial on each case, he faced a maximum sentence of fifteen years in prison for Burglary in the Second Degree consecutive to one year in jail for Criminal Contempt in the Second Degree. Instead, he received a very advantageous plea bargain requiring him to serve only one year in jail concurrently for both cases. It appears that the defendant, who already is an inadmissible or deportable alien[FN5], chose to plead guilty to avoid a lengthy prison sentence, fully appreciating that his guilty plea provided a potential additional ground for his removal from the United States.

Additionally, regardless of the defendant's convictions in these cases, he remains a deportable or inadmissible alien, notwithstanding the possibility of a discretionary waiver of removal (see People v Haley, 96 AD3d 1168, 1169 [3rd Dept 2012]; Figari, 40 Misc 3d 1232[A], 7; People v Diaz, 970 NYS2d 444, 2013 NY Slip Op 23267 [Crim Ct, NY County 2013]). The defendant would be hard-pressed to demonstrate, therefore, that there is a reasonable probability that but for his attorney's error, the result here would be any different (see Strickland v Washington, 466 US 668, 694 [1984]; Padilla, 130 S Ct at 1482-1484; People v McDonald, 1 NY3d 109, 113-114 [2003]; Haley, 96 AD3d at 1169; Figari, 40 Misc 3d 1232[A], 7; cf. People v Picca, 97 AD3d 170 [2d Dept 2012]).

In sum, the defendant's claim that he was misinformed about the immigration consequences of pleading guilty is made solely by him, is unsupported by any other evidence, and under all of the circumstances, is not reasonably possible to be true (see CPL § 440.30[4][d]; see also People v Taylor, 211 AD2d 603 [1st Dept 1995]; People v Smiley, 67 AD3d 713, 714 [2d Dept 2009] [defendant's motion to vacate judgment properly denied without a hearing where defendant's self-serving allegations are "not supported by any other affidavit or evidence, and under all the circumstances attending the case, there is no reasonable possibility that such allegations are true"]; People v [*6]Passino, 25 AD3d 817, 818-819 [3rd Dept 2006] [defendant's motion to vacate judgment on the ground his counsel provided inadequate representation properly denied where "the sole proof submitted in support of defendant's motion was his own affidavit, and it contained only conclusory allegations, most of which were contradicted by his plea allocution"]; People v Woodard, 23 AD3d 771, 772 [3rd Dept 2005] [defendant's motion to vacate judgment properly denied without a hearing where the "defendant's affidavit, the sole proof submitted in support of his motion, contained only conclusory generic allegations"]; People v Sayles, 17 AD3d 924, 924-925 [3rd Dept 2005] [defendant's motion to vacate judgment properly denied without a hearing where "defendant's self-serving and conclusory affidavit is directly contradicted by the record evidence"]; People v Kennedy, 46 AD3d 1099, 1101 [3rd Dept 2007]; see also People v Toal, 260 AD2d 512 [2d Dept 1999]). In any event, the defendant cannot demonstrate that he was prejudiced by any deficiency in his attorney's representation (see Strickland, 466 US at 693). Accordingly, the defendant's motion to vacate his judgment of conviction is denied without a hearing.

This constitutes the decision and order of the Court.

Dated:September 9, 2013

Queens, New York

______________________

Elisa S. Koenderman, ASCJ Footnotes

Footnote 1: The Waiver of Right to Appeal and Other Rights also includes a waiver of the "right to file motions to vacate my conviction and set aside my sentence under CPL Article 440." Nevertheless, the People have not interposed the waiver as a bar to the instant motion. Although the motion may be deniable on this basis, the Court has determined to address it on the merits.

Footnote 2: The defendant contends that his plea to Burglary in the Third Degree constitutes an aggravated felony (see 8 USCA § 1227[a][2][A][iii]) and that his plea to Criminal Contempt in the Second Degree constitutes a crime of moral turpitude (see 8 USCA § 1227[a][2][A][I]), thereby precluding him from cancellation of removal.

Footnote 3: The defendant states that he has been physically present in the United States for 23 years. Apart from his own word, he provides no support for that assertion. Additionally, under Docket No. 2012QN013195, the Domestic Incident Report, which was written and signed by the complainant under penalty of perjury, states, in pertinent part, that " . . . a month and a half ago [the defendant] came from Ecuador . . . ."

Footnote 4: As the court file reflects, the order of protection which the defendant admitted violating under Docket No. 2012QN013195 was issued in an underlying case involving the same complainant where the defendant pleaded guilty on May 17, 2011 to disorderly conduct in satisfaction of charges of menacing and harassment and was sentenced to a conditional discharge. The defendant's criminal history record additionally indicates that on May 17, 2011, the defendant again pleaded guilty to disorderly conduct in satisfaction of the charge of criminal contempt and was sentenced to a conditional discharge. The defendant's criminal history record also indicates that the defendant was twice convicted on March 11, 2002 and November 5, 1999, respectively, of operating a motor vehicle while impaired.

Footnote 5: The Court does not have a copy of the Notice to Appear filed against the defendant by the Department of Homeland Security. The defendant admits in his affidavit, however, that he is "a native and citizen of Ecuador and entered the United States in 1990." He does not state that he entered or remained in the United States as a lawful permanent resident. Moreover, an ICE detainer was lodged against the defendant subsequent to his arrest on March 7, 2012, before the defendant admitted guilt or was convicted in these cases. Furthermore, the gravamen of the defendant's argument is that his convictions in these cases rendered him ineligible for discretionary relief under 8 USCA § 1229b(b)(1). These circumstances compel the inference that the defendant is removable as an inadmissible or deportable alien.