People v Brito
Annotate this CaseDecided on September 4, 2015
Supreme Court, New York County
The People of the State of New York
against
Hiram Brito aka Jairo Brito, Defendant.
SCI 1195/97
For the People: ADA Gabriel Cohen, Office of the Special Narcotics Prosecutor, 80 Centre St. New York, NY 10013, (212) 815-0135.
For Defendant: Cory Forman, Esq., Cohen Forman Barone LLP, 40 Fulton St., 7th Fl, New York, NY 10038, (212) 766-9111.
Richard M. Weinberg, J.
Defendant was originally charged with one count of the A-II felony of Criminal Sale of a Controlled Substance in the Second Degree (PL § 220.41[1]), one count of the B felony of Criminal Possession of a Controlled Substance in the Third Degree (PL §220.16[1]), one count of the A misdemeanor of Criminal Possession of a Controlled Substance in the Seventh Degree (PL §220.03), one count of the A misdemeanor of Resisting Arrest (PL §205.30) and one count of the violation of Unlawful Possession of Marihuana (PL §221.05). These charges were based upon a series of observed sales by the defendant, as well as the recovery of a package containing more than half an ounce of cocaine which the defendant had discarded. On March 14, 1997, defendant pled guilty under a Superior Court Information to the lesser charge of Criminal Possession of a Controlled Substance in the Fourth Degree (PL §220.09 [1]), a C felony, in exchange for a promised sentence of five years of Probation.
Defendant now moves to set aside this 1997 judgment. The motion papers allege that defendant received ineffective assistance of counsel under the standards articulated in Padilla v Kentucky, 130 S Ct 1473 (2010), People v McDonald, 1 NY3d 109 (2003) and People v Ford, 86 NY2d 397 (1995), because plea counsel affirmatively misadvised defendant as to the immigration consequences of his plea and that he has been prejudiced by that misadvice. He also [*2]alleges that plea counsel's performance was deficient because he failed to litigate any search and seizure issues.
To prevail on an ineffective assistance of counsel claim, defendant must show that counsel's performance was deficient, that is, it was unreasonable under the prevailing professional norms at the time of representation. Defendant must also show that this deficient performance prejudiced the defendant. Strickland v Washington, 466 US 668 (1984); People v Mc Donald,1 NY3d 109 (2003). Failure to establish either deficient performance or prejudice is fatal to defendant's motion. Under the New York Constitution, a defendant is entitled to meaningful representation. In the context of a guilty plea, a defendant has been afforded meaningful representation when he receives an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel. People v Ford, 86 NY2d 397 (1995).
As noted above, a defense counsel's performance is to be evaluated under the prevailing norms at the time of representation. Prior to Padilla, the immigration consequences of a plea were considered collateral and, absent affirmative misadvice, the failure to advise a defendant of those immigration consequences neither rendered counsel's performance deficient nor made the plea involuntary. Padilla, decided in 2010, makes clear that professional norms now require that a defense attorney advise his client on the immigration consequences of a plea. Padilla, because it announced a "new rule" of law, does not have retroactive effect under the principles set out in Teague v Lane (489 US 288 [1989]) and People v Eastman (85 NY2d 265 [1995]. Consequently, Padilla does not apply to collateral challenges to convictions which became final prior to the Padilla decision. Chaidez v United States, __S. Ct._, 2013 WL 610201 (2013); People v Baret, 23 NY3d 777 (2014). However, a pre-Padilla claim of affirmative misadvice remains viable despite the non-retroactivity of Padilla. See People v McDonald, supra; People v Llibre, 125 AD3d 422 (1st Dept [2015]).
The relevant factual allegations in support of this claim are raised in defendant's affidavit. In his affidavit, defendant alleges that, when his attorney explained that he would be negotiating with the District Attorney's Office, defendant told his attorney that he was trying to become a citizen. His attorney allegedly responded that he "would do what he could to avoid any problems with that". On a subsequent date, when counsel was explaining the negotiated plea offer, he told defendant that if he pled guilty to a felony, he would be able to stay out of jail with a sentence of Probation and if defendant stayed out of trouble, "everything would work out fine". Defendant accepted the offer, pled guilty and received the promised sentence of five years of Probation.
Defendant now claims—some 18 years later—that he understood counsel's explanation of the plea offer to mean that he would not have a problem with his immigration status and would not face being removed from the United States. Defendant apparently reached this "understanding" without asking any questions of his counsel. The relevant inquiry on this motion, however, is not what the defendant may have silently inferred . Rather, the relevant inquiry on a claim of affirmative misadvice is what did counsel actually say. Even assuming, for purposes of this motion, the veracity of defendant's allegations as to what counsel said, those [*3]allegations do not constitute erroneous advice on the subjection of deportation. See People v Llibre, supra.
Defendant's alternate claim that he received ineffective assistance of counsel because his counsel pursued plea negotiations rather than litigate some purported Fourth Amendment issues is without merit. Counsel's strategy in pursuing plea negotiations was both fruitful and consistent with sound practice.
Defendant's plea occurred in 1997. Counsel's performance at the time of the plea comported with the then prevailing professional norms. See People v Ford, 86 NY2d 397 (1995); People v McDonald, 1 NY2d 109 (2003). Defendant faced many years in state prison. His counsel negotiated a highly favorable, non-incarceratory disposition. Defendant received the meaningful, effective representation to which he was entitled.
Since defendant has failed to establish that counsel's performance was deficient, the Court need not reach the issue of prejudice and need not hold a Picca hearing. See People v Picca, 97 AD3d 170 (2nd Dept., 2012).
Even were the Court to reach the issue of prejudice, the motion would fail. While defendant's 1997 drug conviction may have been the formal basis for the removal proceedings against him, the Court notes that defendant was also convicted of the C violent felony of Burglary in the Second Degree (PL §140.25[2]) in 2009. This subsequent conviction would constitute an independent basis for removal even if the Court were to grant the instant motion..
Defendant's motion to vacate judgment pursuant to CPL 440.10 is hereby denied.
This constitutes the decision and order of the Court.
Dated:September 4, 2015___________________________
New York, New YorkRichard M. Weinberg
JSC
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