People v Busgith

[*1] People v Busgith 2018 NY Slip Op 50530(U) Decided on April 2, 2018 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 2, 2018
Supreme Court, Bronx County

The People of the State of New York, Plaintiff,

against

Michael Busgith, Defendant.



1968/2012, 0997/2014, 2861/2014



For the People: Assistant District Attorney James J. Wen, Office of the Bronx County District Attorney, 718-838-7494

Attorney for Defendant: Rafael E. Muniz, 212-363-6460
Steven L. Barrett, J.

Introduction

On February 14, 2012, defendant pled guilty to Robbery in the Second Degree in full satisfaction of Bronx County Indictment Number 0876/2011. Defendant admitted that he displayed what appeared to be a firearm and stole an individual's wallet. On November 6, 2014, defendant pled guilty to Robbery in the Third Degree, Attempted Assault in the Second Degree, and Promoting Prison Contraband in the First Degree in full satisfaction of Bronx County Indictment Numbers 1968/2012, 0997/2014, and 2861/2014, respectively. Defendant admitted that he and another stole a gold chain from a women's neck; while confined at Riker's Island, he used a dangerous instrument and attempted to cause serious physical injury to another person; and while confined at Riker's Island, he possessed a scalpel.[FN1]

On November 25, 2014, the Court sentenced defendant to a determinate term of imprisonment of three and one-half years and three and one-half years post release supervision on the second degree robbery conviction (Ind. No. 0876/2011), a determinate term of one year on the robbery in the third degree conviction (Ind. No. 1986/2012), and an indeterminate one to three year sentence on the attempted assault in the second degree conviction (Ind. No. 997/2014) [*2]and an indeterminate one to three year sentence on the promoting prison contraband conviction (Ind. No. 2861/2014). All of the sentences were imposed to run concurrently, except the two indeterminate one to three year sentences were to run consecutively to the three and one-half year determinate sentence, but concurrently to each other.[FN2]

On August 11, 2015, the United States Department of Homeland Security initiated deportation proceedings against defendant who is a lawful permanent resident of the United States and a native and citizen of Guyana, based, inter alia, on the Bronx County second and third degree robbery convictions, the Bronx County attempted second degree assault conviction, and the New York County attempted assault in the second degree conviction. On September 7, 2016, Immigration Judge Roger Sagerman ordered defendant removed from the United States and returned to Guyana and, on January 23, 2017, the Board of Immigration Appeals dismissed defendant's appeal of the removal order and specifically rejected his claim under the Convention Against Torture Act (see People's Affirmation in Opposition, Exhibits 3 and 4).

Defendant now moves to vacate the third degree robbery and attempted assault convictions, as well as the first degree promoting prison contraband conviction, on the ground that he received ineffective assistance of counsel. Specifically, defendant claims that his attorney, Pierre Sussman, Esq., failed to advise him that these guilty pleas would automatically result in his deportation. Defendant maintains that had he been aware that he would be deported as a consequence of these convictions, he would have proceeded to trial. For the reasons set forth below, defendant's motion is denied.

Discussion

Defendant's claim that Mr. Sussman failed to adequately advise or misadvised him of the deportation consequences of his guilty pleas is unavailing. As a threshold matter, defendant failed to substantiate his claim. Although defendant provided the plea minutes and his own self-serving affidavit, he did not provide an affidavit from Mr. Sussman, nor did he provide the sentencing minutes to substantiate that Mr. Sussman's advice was deficient.[FN3] Based on the lack of corroborative evidence substantiating defendant's claims, his motion is denied (CPL § 440.30[4][b]).

Moreover, based on the representations made by Mr. Sussman at the plea and sentencing proceedings, there is no reasonable possibility that defendant's claim is true. At the plea proceedings, Mr. Sussman gave defendant constitutionally sufficient warnings concerning the immigration consequences of his pleas. He stated:

It should be stressed that as counsel I have discussed with not only my client but his family, the real potential collateral consequences of deportation or removal proceedings being brought by the Federal Government for these dispositions and he's aware of that. [*3]We have discussed that. Immigration attorney[']s have been consulted.

(Plea Minutes at 20-21).

Further, at the sentencing proceedings, Mr. Sussman again assured the Court that defendant understood all the collateral consequences of the guilty pleas, including the deportation consequences. Mr. Sussman stated that defendant specifically understood "that he faces almost certain deportation upon his release from state prison as a result of these dispositions" (Sentencing Minutes at 9). He assured the Court that defendant understood that even if he was not held for deportation immediately upon completion of his sentences, he still would "likely face some federal deportation procedure" at some point later based on the convictions (Sentencing Minutes at 9). Thus, defendant was made aware that his deportation was all but inevitable as a result of the convictions.

In addition, in an affidavit provided to the Court by Mr. Sussman, he reported that during the plea negotiations in these cases he discussed with defendant the consequences that these felony convictions would have on defendant's status as a Lawful Permanent Resident. He specifically advised defendant that any felony conviction "would almost certainly trigger" deportation proceedings and to consult with an immigration attorney (Affirmation of Pierre Sussman, Esq., dated March 2, 2018, ¶¶ 5-6). Mr. Sussman and defendant then consulted with an immigration attorney who also advised defendant that he could be deported if convicted of any crime involving moral turpitude or any aggravated felony such as robbery (Affirmation of Pierre Sussman, Esq., dated March 2, 2018, ¶ 8). Finally, Mr. Sussman stated that he advised defendant multiple times that a conviction for robbery and firearms related charges would likely result in his deportation (Affirmation of Pierre Sussman, Esq., dated March 2, 2018, ¶¶ 8-9).[FN4]

Based on the warnings given by Mr. Sussman to defendant as detailed in the plea minutes, sentencing minutes, and Mr. Sussman's affidavit, the Court finds that counsel sufficiently advised defendant that deportation was inevitable as a result of these convictions. Cf. People v. Loaiza, 158 AD3d 775 (2nd Dept. 2018) (advice deficient where counsel told noncitizen defendant only that his felony drug conviction "may affect his [immigration] status"); People v. Pequero, 158 AD3d 421 (1st Dept. 2018) (advice deficient where counsel only told defendant on his plea to an aggravated felony that his conviction would have "potential immigration consequences"); People v. Mebuin, 158 AD3d 121 (1st Dept. 2017) (advice deficient where counsel told defendant he could "get [him] out of" the immigration consequences of the plea); People v. Doumbia, 153 AD3d 1139 (1st Dept. 2017) (advice deficient where counsel merely told defendant that deportation might occur or was a risk). Here, in contrast to the above cited cases, the advice given by counsel would have led the defendant to reasonably believe he would be deported as a result of his plea to four felony indictments.

Even, assuming arguendo, that Mr. Sussman's advice fell short of the Doumbia standard because, in addition to warning defendant that deportation was "virtually certain," Mr. Sussman added more conditional advice, defendant fails to make the requisite prima facie showing that he [*4]was prejudiced by any purported deficiency. See People v. McDonald, 1 NY3d 109 (2003) (even if defendant receives incorrect advice from counsel, defendant must demonstrate prejudice to establish ineffective assistance); People v. Jimenez, 144 AD3d 402 (1st Dept 2016) (defendant must show that there is a reasonable probability that he would not have pled guilty if he knew of the possibility of deportation).

Initially, defendant obtained an extraordinarily favorable plea bargain. Had he proceeded to trial on each of the three separate indictments that are the subject of the instant motion, he faced substantial prison time. If convicted of the top count of Robbery in the First Degree, a Class "B" violent felony (Ind. No. 1968/2012), he faced up to twenty-five years in prison. If convicted of the top count of Assault in the First Degree, a class "B" violent felony (Ind. No. 0997/2014), he faced up to another twenty-five years in prison. And if convicted of the top count of Promoting Prison Contraband in the First Degree, a class "D" felony (Ind. No. 2861/2012), he faced up to an additional seven years in prison. These sentences could have been directed to be served consecutively. In addition, these sentences could have been directed to run consecutively to his sentence on his 2011 Bronx County robbery conviction (Ind. No. 0876/2011) and the sentences on his New York County convictions (Ind. Nos. 4405/2102 and 3146/2014). Thus, defendant faced an extremely lengthy prison term and then deportation proceedings upon release. Instead, he opted to take the extraordinarily favorable plea and sentence bargains. Thus, it strains credulity to believe defendant's claim that had he known that he would be deported, he would not have pled guilty and opted for three trials.

Moreover, in addition to Mr. Sussman's warnings, the Court sufficiently warned defendant that he would face deportation based on the convictions. At the plea proceedings, before accepting the guilty pleas, defendant told the Court that he possessed a green card. The Court warned him that his guilty pleas in these cases could affect his immigration status and that he likely would be deported after he served his sentences (Plea Minutes at 8). The Court repeated this warning and specifically advised defendant that if he was not a citizen, he could be deported as a result of pleading guilty in these cases (Plea Minutes at 8-9). Thus, the Court adequately advised defendant that his guilty pleas would result in deportation. See People v. Rodriguez, 150 AD3d 1029 (2d Dept. 2017) (defendant aware of immigration consequences and thus not prejudiced where court properly advised her, even if counsel's advice was insufficient); see also People v. Jimenez, 150 AD3d 403 (1st Dept 2017) (advice from court that there was "a good likelihood" defendant "could" be deported sufficient; plea court not required to ascertain whether particular conviction mandates deportation by federal law and advise as such).

Furthermore, at the time defendant entered the guilty pleas in these cases, he already was facing deportation proceedings based on his other convictions for two violent felony offenses. The second degree robbery conviction in Bronx County (Ind. No. 0876/2011)[FN5] and attempted second degree assault conviction in New York County (Ind. No. 3146/2014) each carried mandatory deportation and is grounds for defendant's deportation by the United States Department of Homeland Security, Notice to Appear for Removal Proceedings, p. 3 (See People's [*5]Affirmation in Opposition, Exhibit 2). Because defendant is still subject to mandatory deportation with respect to convictions that he is not seeking to vacate, it is hard to see how he was prejudiced by any misadvice given with respect to the convictions he is seeking to vacate. See People v. Haley, 96 AD3d 1168, 1169 (3d Dept. 2012) (defendant's immigration status was not affected by guilty plea because he already was deportable based on his prior convictions); People v. Noviri, 57 Misc 3d 140 (A) (App. Term 1st Dept. 2017) (highly unlikely defendant was prejudiced by court's insufficient immigration warnings where defendant had lengthy criminal record for prior 30 years, in two states, and his prior convictions already rendered him deportable).

Finally, and perhaps most significantly with respect to the lack of prejudice here, defendant's motion lacks any evidence establishing that he has substantial ties to this country. In his sworn statement, defendant states only that he would not have pled guilty had he known it would trigger deportation (Affidavit of defendant Michael Busgith, dated August 24, 2017). Nothing in his sworn affidavit links him to the United States, shows any family ties, or confirms his fear of persecution if deported back to Guyana. Moreover, in his unsigned and unsworn statement, defendant merely states that he has lived in the United States for sixteen years, his family lives here, and he has no ties to Guyana. But this hardly suggests strong ties to the United States and it does not suggest that defendant's native country of Guyana poses a danger to him. See People v. Garcia, 154 AD3d 626 (1st Dept. 2017) (no prejudice established based on strength of People's case, favorable plea, lack of likelihood of plea offer with non-mandatory immigration consequences, and defendant's other convictions, which carried mandatory immigration consequences); cf. People v. Lee, 137 Sup.Ct. 1958 (2017) (prejudice established where defendant showed his strong ties to US where he lived for thirty-five years, was a lawful permanent resident for thirty years, established two businesses, was the only family member in US who could care for his elderly parents, both of whom were naturalized US citizens); People v. Mebuin, 158 AD3d 121 (1st Dept. 2017) (defendant established a reasonable probability that he would not have pled guilty where he resided in the US for twenty years, faced life-threatening consequences if deported to his native country, which was corroborated by his status as an asylee, and he was the only parent of child who was a US citizen); People v. Abdullah,153 AD3d 1424 (2d Dept. 2017) (defendant established his strong ties to US where he was sixty-two years old, with health issues, in US for twenty-five years, married to a US citizen for more than twenty years, spouse suffered from multiple sclerosis, and had two children who were US citizens).

Thus, for all of these reasons, defendant has fallen woefully short of establishing that he was prejudiced by any deficiencies in plea counsel's representation. Accordingly, defendant's motion to vacate his convictions is denied.

This is the decision, order and opinion of the Court.

Dated: April 2, 2018

Bronx, New York

Hon. Steven L. Barrett

Justice of the Supreme Court Footnotes

Footnote 1:With respect to defendant's robbery plea (Indictment No. 1968/2012), the felony complaint alleged that defendant brandished a knife and threatened to kill the victim during the robbery. In addition, on November 5, 2014, defendant pled guilty to Conspiracy in the Fourth Degree and Assault in the Second Degree in full satisfaction of New York County Indictment Numbers 4405/2012 and 3146/2014.

Footnote 2:The above Bronx County sentences were imposed to run concurrently to the one to three year indeterminate sentences that had been imposed on New York County Indictment Numbers 4405/2012 and 3146/2014.

Footnote 3:The Court, however, was able to procure both an affidavit from Mr. Sussman and the sentencing minutes, which, as detailed below, shed significant light on counsel's advice with regard to the immigration consequences of defendant's pleas.

Footnote 4:Defendant misleadingly maintains that Mr. Sussman told him that he was still eligible for citizenship notwithstanding his guilty pleas. However, Mr. Sussman told defendant only that he could apply for citizenship. See Affirmation of Pierre Sussman, Esq., dated March 2, 2018, at ¶¶ 8-9; People's Affirmation in Opposition, Exhibit 1, p.1).

Footnote 5:The Court notes that Indictment Number 0876/2011 is not subject to the instant vacutur motion. The Court is not aware of whether defendant has sought to vacate New York County Indictment Number 3146/2014.