Defendant Charran Rampersaud ("Defendant" or Rampersaud") moves pursuant to § 440.10 of the Criminal Procedure Law for an order vacating his judgment of conviction entered on November 16, 2009. His conviction followed a negotiated guilty plea to one count of the Class D felony of Insurance Fraud in the Third Degree (Penal Law § 176.20) and one count of the Class E felony of Grand Larceny in the Fourth Degree (Penal Law § 155.30). Defendant is currently represented by Jonathan Edelstein, Esq. who filed the instant motion on his behalf.

The thrust of the instant motion is a claim of ineffective assistance of counsel by Defendant's two former attorneys, Anthony Battesti ("Battesti") and Aaron Ward ("Ward"). Defendant's claim with respect to Battesti, who represented Defendant through the entry of his plea, stems from Battesti's alleged incorrect advice regarding the immigration consequences of a guilty plea. Rampersaud was born Guyana, South America, and while a lawful resident here, is not a United States citizen. Defendant states that he advised Battesti of these facts, and maintains that he was told by Battesti, in words or substance, that although he was not a citizen, he would simply go to jail for a few months and then go home. Ward represented Defendant in place of Battesti after the plea was entered and through sentencing. Ward's alleged ineffective assistance is based upon his failure to raise with the court Battesti's alleged incorrect advice regarding immigration consequences as well as Battesti's failure to challenge, during the plea, [*2]the People's alleged insufficient factual allocution to the statutory elements of the crimes; Defendant contends that the allocution failed to elicit any specific acts committed by Defendant. Neither Battesti nor Ward submitted any papers in support of Defendant's motion. Defendant maintains that his conviction subjects him to deportation from the United States once his sentence has been served.

On November 16, 2009, Defendant entered a plea of guilty to a Superior Court Information charging a single count of Insurance Fraud 3° and a single count of Grand Larceny 4°, with a promise of indeterminate concurrent sentences of one to three years, and a restitution judgment in the amount of $77,199.00. Rampersaud was originally charged with three counts each of Insurance Fraud 3° and Grand Larceny 3° relating to the submission of allegedly false automobile damage claims to certain insurers. Defendant contends that Battesti was obligated to advise him that his plea would subject him to mandatory deportation. Defendant maintains that Battesti's failure to do so constituted ineffective assistance of counsel because the federal law pertaining to the immigration consequences of a plea to such crimes is, Defendant asserts, "simple and straightforward" since both crimes are allegedly deemed "aggravated felonies" within the meaning of the immigration statute, the conviction for which mandates deportation. See 8 U.S.C. §§ 1101(a)(43)(G) and (M) (I); 8 U.S.C. 1227(a)(2)(A)(iii); 1228(c); 1229 b (a)(3).

According to Defendant's affidavit submitted in support of the instant motion, the first time that he even heard of any potential immigration consequence of his plea was during the plea allocution by Assistant District Attorney Peter Carbone, who asked Defendant whether he "understands that if [he] is not a citizen of the United States, this plea of guilty may result in [his] deportation or exclusion from the United States," to which Defendant answered in the affirmative. Defendant maintains that at no time did his attorney mention immigration consequences of his potential plea, and that he pled notwithstanding the district attorney's statement that he "may" be deported because he trusted the advice of his counsel. Rampersaud's affidavit states he would not have plead guilty had known that he was subject to mandatory deportation - - presumably as opposed to possible deportation, as recounted by ADA Carbone.

On April 27, 2010, Defendant's then new attorney Ward filed a motion to withdraw Defendant's guilty plea "as of right" because of his and his client's assertion that Defendant was "actually innocent." Mr. Ward did not challenge the plea based upon prior counsel's alleged failure to properly advise Rampersaud about the deportation consequences of the plea or the alleged insufficient factual allocution at the time of the plea. By Decision and Order dated May 27, 2010 (the "2010 Decision") the Court denied the motion and proceeded to sentence Defendant, as promised, to an indeterminate term of 1 to 3 years incarceration in state prison on each count, to run concurrently. Defendant is now incarcerated at Lakeview Shock Incarceration Correctional Facility.

Rampersaud argues that he has established an ineffective assistance of counsel claim under both federal and state law. Under the federal rubric as articulated in Strickland v. Washington, 466 U.S. 668 (1984), in order to prevail on a Sixth Amendment claim of ineffective assistance of counsel, a defendant must show that counsel's representation "fell below an objective standard of reasonableness" measured under prevailing professional norms. In addition, a defendant must demonstrate that he was prejudiced by such ineffective assistance such that "there is a reasonable probability that, but for counsel's unprofessional errors, the result [*3]of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668 at 688, 694 [1984]). In evaluating a claim of ineffective assistance of counsel under New York law, the Court must determine whether the evidence, the law and the circumstances of the particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided "meaningful representation." (People v. Baldi, 54 NY2d 137 [1981]; People v. Hull, 71 AD3d 1336 [3d Dept. 2010]; People v. Benevento, 91 NY2d 708 [1998]).

Defendant argues that the United States Supreme Court's decision in Padilla v. Kentucky, 130 Sup. Ct. 1473 (2010) compels vacatur of his plea. In Padilla, the Court applied the two part Strickland standard to the situation where defense counsel's alleged ineffective assistance pertained to a collateral result of a guilty plea - - the immigration and deportation consequences of the plea. The Court held that the application of the ineffective assistance test as articulated in Strickland mandates that when the law is straightforward as to the deportation consequence of a guilty plea, defense counsel must clearly advise his client of such consequence under pain of rendering ineffective assistance. The Court in Padilla found that counsel in that case - - involving drug offenses - - could have easily determined that a plea would make defendant eligible for deportation simply by reading the text of the statute, which addressed not some broad classification of crimes, but specifically commanded removal for virtually all controlled substance convictions. Counsel's failure to do so and to advise Padilla accordingly provided false assurance to him that his plea and conviction would not result in his removal from this country, and thus constituted ineffective assistance. (Padilla, 130 Sup. Ct. at 1486). Once ineffective assistance is shown, a defendant must also satisfy the second prong of the Strickland test - - that he was prejudiced by such ineffective assistance. The Court in Padilla remanded the case to the lower court to rule upon that issue.

Defendant contends that the Padilla test of ineffective assistance has been met here. He first argues that the terms of the relevant portions part of the immigration statute at issue in the instant case are succinct, clear and explicit in defining the removal consequence of a conviction, and therefore his attorney's failure to advise him of such stark ramifications of a guilty plea constituted ineffective assistance under Padilla. An examination of several distinct sections of the immigration statute, read together, tends to support Defendant's view, although the fact that several separate statutory sections must be examined and analyzed in order to reach such a conclusion may well belie Defendant's contention.Section 1227 provides that any alien who is convicted of an "aggravated felony" at any time after admission to the United States is deportable. (8 U.S.C.A § 1227 (a)(2)(A)(iii)). Section 1101 (a)(43)(G) defines an aggravated felony as a theft offense for which the term of imprisonment is at least one year, or, under § 1101(a)(43)(M)(I), an offense that involves fraud or deceit in which the loss to the victim or victims exceeds $10,000.00. The Attorney General is prohibited by statute from seeking to cancel the removal of an alien who is deportable from the United States if that alien has been convicted of any aggravated felony (8 U.S.C.A § 1229b (a)(3)).

By virtue of his guilty plea to Grand Larceny and Insurance Fraud, Defendant may have been convicted of one or two "aggravated felonies." Although a review of more than one section of the immigration statute is required in order to reach the conclusion, the crimes to which Defendant plead - - Grand Larceny 4° and Insurance Fraud 3° - - may well be "aggravated felonies"; Grand Larceny is a theft and Insurance Fraud clearly involves fraud. [*4]

Conversely, the People argue that in this case, the immigration law is not nearly as simple and direct as Defendant contends and therefore Padilla did not compel counsel to provide specific advice as to deportation consequences of the plea in order to render effective assistance. In Padilla, defendant's conviction "related to a controlled substance" - - a separate and direct section of the immigration statute which clearly spells out the dire consequences of a guilty plea without the need for any further statutory or case law reference. (Id. at 1483). Here, the crimes to which Rampersaud plead guilty fall under a broad and more nebulous category of crimes - - crimes involving "moral turpitude" or "aggravated felonies." In the latter situation, determining which particular crime falls within a mandatory deportation category is, according to the People, not such an easy task. In support of their position, the People refer to the language in Justice Alito's concurring opinion in Padilla which describes aggravated felonies or crimes involving moral turpitude as broad categories of crimes, not specifically mentioned by the Immigration and Nationality Act, and the difficulty inherent in determining whether a particular crime is an "aggravated felony" or involves "moral turpitude." The People maintain that under such circumstances - - which they claim are present here - - Padilla only compels trial counsel to provide his client with a general admonition that his plea may have immigration consequences, rather than a flat warning that the plea will result in deportation. At the very least, the People maintain, ADA Carbone's admonition to Rampersaud during the plea allocution that a guilty plea "may subject [Defendant] to deportation or exclusion from the United States" provided a sufficient warning to satisfy Padilla.

Discussion and Conclusions

In determining whether a defendant has received ineffective assistance on a collateral matter such as the immigration consequences of a plea, courts are constrained to remain mindful of the general principles that obtain in ineffective assistance cases. As noted above, the general standard for determining whether a defendant's counsel has effectively assisted his client in all primary aspects of a criminal case is whether he or she provided reasonable and meaningful representation. In evaluating whether meaningful representation has been provided, Courts have been loath to employ 20-20 hindsight to override a defense strategy diligently pursued. Indeed, Courts, including the Supreme Court in Strickland, have consistently taken pains to insure that a court will not second guess an attorney's reasoned judgment. As the Court in Strickland stated:

"Judicial scrutiny of counsel's performance must be highly deferential. It is alltoo tempting for a defendant to second-guess counsel's assistance after conviction oradverse sentence, and it is all too easy for a court, examining counsel's defense afterit has proved unsuccessful, to conclude that a particular act or omission of counselwas unreasonable. . . . A fair assessment of attorney performance requires thatevery effort be made to eliminate the distorting effects of hindsight, to reconstructthe circumstances of counsel's challenged conduct, and to evaluate the conduct fromcounsel's perspective at the time. Because the difficulties inherent in makingthe evaluation, a court must indulge a strong presumption that counsel's conductfalls within the wide range of reasonable professional assistance; that is, thedefendant must overcome the presumption that, under the circumstances, thechallenged action "might be considered sound trial strategy." See Michael v.Louisiana, supra, 350 U.S., at 101, 76 S. Ct., at 164. There are countless ways toprovide effective assistance in any given case. Even the best criminal defenseattorneys would not defend a [*5]particular client in the same way."

Id. at 689; (emphasis added). See also, e.g., People v. Baldi, 54 NY2d 137, 146-147 (1981); People v. Jackson, 52 NY2d 1027 (1981).

Padilla should not be read to undermine such a longstanding principle, particularly when matters collateral to a criminal case - - rather than the central issue of guilt or innocense - - are at play. Perhaps for that reason, the Court in Padilla limited its holding to situations where the answer to the question of whether a defendant will be deported if he is convicted of the charged offense is plain and obvious - - in Padilla, a drug offense for which deportation is virtually automatic. Absent such clear statutory imperative, the implication of Padilla (and Strickland on which it relies) is clear: to defer to the considered judgment of trial counsel - - here, in recommending a guilty plea with a negotiated lesser sentence as opposed to Defendant taking his chances at trial - - as long as the defendant is made aware of the possible of negative collateral ramifications of his plea.

Accordingly, under the facts adduced in the instant case, it remains unclear whether Defendant's claim of ineffective assistance satisfies the first prong of Padilla. The crimes to which Defendant plead are not drug offenses, but rather fall into the somewhat amorphous category of "aggravated felonies" or crimes involving "moral turpitude." While Defendant claims that he was not informed by his counsel of the possible immigration consequences of a guilty plea, neither of Defendant's predecessor counsel provided an affidavit in support of his motion, which might have shed some light on prior counsels' strategy and advise. Moreover, Defendant was told by the District Attorney during his allocution of such possible consequence, and Defendant acknowledged, under oath, that he understood. Indeed, in light of Padilla, it remains an open question of how much more, if anything, a prosecutor or court must do during an allocution in order to preserve the integrity of the guilty plea since a more searching inquiry of a defendant may tend to intrude upon the attorney client relationship and privilege.

Thus, Defendant has failed to establish, by his papers alone, entitlement to relief under Padilla for ineffective assistance of counsel. While, under these circumstances, a hearing to further develop the facts surrounding the nature and quality of immigration advice that counsel may have proffered Defendant might be in order, such hearing is obviated by Defendant's failure to establish prejudice - -the second prong of Padilla and Strickland.

In accordance with the test articulated in Strickland, a court, upon a finding that counsel's performance was deficient, must then determine whether a defendant can show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have instead insisted on going to trial. United States v. Coffin, 76 F. 3d 494 (2d Cir. 1996), cert. denied, 517 U.S. 1147 (1996); People v. McDonald, 1 NY3d 109 (2003); People v. Lange, 21 Misc 3d 6 (App. Term, 2d Dept. 2008).The People maintain that regardless of the advice, or lack thereof, that Defendant received from counsel, his attempt to overturn his conviction should nonetheless be denied because he has failed to satisfy this second prong of Padilla's application of the Strickland rule - - that he has been prejudiced by the alleged ineffective assistance. For the following reasons, the Court agrees.

Cases that have addressed the issue of prejudice in the content of a guilty plea have made [*6]clear that a defendant's mere assertion that he would not have plead guilty had he known of the immigration consequences of his plea is insufficient, standing alone, to constitute prejudice. For example, in People v. McDonald, 1 NY3d 109 (2003), the Court of Appeals addressed the issue of whether a defendant whose counsel had ineffectively represented him by providing incorrect information about the deportation consequences of his plea had been prejudiced by his entry of a guilty plea. The Court held that in order to sustain a claim of prejudice that would entitle a defendant to withdraw his plea, the defendant must set forth "factual allegations that, but for counsel's error, [he] would not have pleaded guilty." The Court would then evaluate such allegations "with reference to the face of the pleadings, the context of the motions and defendant's access to information" in order to determine whether "there is a reasonable probability that but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Since no such factual allegations were adduced, the Court affirmed the Appellate Division's decision denying defendant's motion to vacate the judgment against him. As the Court held,

"The sufficiency of defendant's factual allegations as to prejudiceshould be evaluated with reference to the face of the pleadings, thecontext of the motion and defendant's access to information (seePeople v. Mendoza, 82 NY2d 415, 426 [1993]). Here, the supportingaffirmation annexed to defendant's motion to vacate the judgment ofconviction was made by trial counsel (see CPL 440.30 [1]). It merelystates that counsel misinformed defendant as to the deportationconsequences of his guilty plea and that defendant relied on theincorrect advice when entering the plea. The affirmation make nofactual allegation that, but for counsel's error, defendant would nothave pleaded guilty.

Given that this is not an instance where defendant's lack of access toinformation precluded more specific factual allegations, defendantwas required to allege necessary facts to support his motion to vacatethe judgment of conviction (see Mendoza, 82 NY2d at 429). Becausehe failed to make a prima facie showing of prejudice, the AppellateDivision did not err in denying his motion to vacate the judgment ofconviction without a hearing."

Id. at 115; see also, e.g., People v. Bao Lin Xue, 30 AD3d 166, 167 (1st Dept. 2006) ("[G]iven the overwhelming strength of the People's case, in which the police observed one burglary and defendant confessed to six more . . . there is no reasonable probability that defendant would have insisted on going to trial but for counsel's mistake in affirmatively misrepresenting the immigration consequences of the plea. . . Counsel pursued a proper strategy by negotiating a very favorable disposition, rather than litigating any suppression or other issues."); People v. Rigg, 2010 NY Misc LEXIS 1521; People v. Robles, 2010 Misc. LEXIS 972.

Such cases are consistent with related decisions that examine claims that ineffective assistance induced a guilty plea, and in which the courts held that a stark assertion of innocence, standing alone, is not sufficient to establish prejudice. See, e.g., United States v. Coffin, 76 F.3d 494, 498 (2d Cir. 1996), cert. denied, 517 U.S. 1147 (1996); Hill v. Lockhart, 474 U.S. 52 (1985). In addition to such an assertion - - whether of innocence or of the desire to avoid [*7]deportation - - a defendant must adduce evidentiary facts tending to indicate that the result - - his conviction for the charged crime and the agreed upon sentence - - would have been different had he obtained proper legal representation. Put simply, a statement by a defendant in the immigration/deportation context that he would not have plead guilty had he known of the collateral consequence of deportation because he did not want to be deported carries as little weight, and has as little legal consequence, as a statement by a defendant in a non-immigration context that he would not have plead guilty because he does not want to be in jail.

The People contend that based on the papers submitted and the facts underlying Defendant's conviction, Defendant has failed to demonstrate prejudice sufficient to satisfy this second prong of Padilla. The People maintain that in light of the "overwhelming evidence" of Defendant's guilt, Rampersaud, far from being prejudiced, received a substantial benefit by pleading guilty: instead of being tried, convicted, possibly sentenced to two consecutive prison terms of 2 1/3 to 7 years - - and then possibly deported - - he plead and received concurrent sentences of 1 to 3 years in state prison before his possible ultimate deportation. Not surprisingly, Rampersaud takes a different view. Despite his admission of guilt during his plea allocution, he insists that he is actually innocent, purports in his affidavit to adduce facts that support his contention, and is far more sanguine about his chances for acquittal in a trial.

Although the McDonald decision predates Padilla by several years, its principles apply with equal force. McDonald makes plain that in order to provide a basis for a claim of prejudice in a guilty plea context, more than a mere assertion of innocense or a wistful longing for what might have been is required, and for good reason: unlike the situation that obtains when a jury verdict is rendered, when a plea is taken, the defendant is placed under oath and, during allocution, swears to his guilt - - a solemn procedure not to be taken lightly. Moreover, negating such a sworn-to plea may well prejudice the People, who would then be compelled to confront the ravages of time on their witnesses and other evidence should a prosecution once obviated by plea now prove necessary. For these reasons, a defendant who has pled must, as MacDonald indicates, make a factual showing, beyond mere assertion or conjecture, that demonstrates potential for success should the case proceed to trial.

In the instant case, Defendant Rampersaud has manifestly failed to make such a showing. In the face of mere assertions supported only by Defendant's own words, the People have at their disposal - - which Defendant is compelled to acknowledge - - sworn to, allocuted statements of several of Defendant's alleged co-conspirators, implicating him as the person who "orchestrated each insurance fraud" (ADA Citron Affirm., p.2), as well as the sworn to statement of the owner of the body shop who "identified defendant as the mastermind of the scheme" to defraud. (Id.).

In light of such potential evidence from the People, and Defendant's failure to adduce any "necessary facts to support his motion to vacate the judgment of conviction" (MacDonald, 1 NY3d at 689), Defendant cannot satisfy the second prong of Padilla and Strickland - - establish that he was prejudiced by his plea. Indeed, Defendant's plea, however induced, may have placed him in a more advantageous position. He is now serving two concurrent sentences of 1 - 3 years; had he proceeded to trial and been convicted, his possible exposure would have been 2 1/3 to 7 years incarceration on each count, consecutive to each other. And, by pleading guilty to the Superior Court Information, Rampersaud avoided prosecution for the four additional felony counts on which he was originally charged. Moreover, whether convicted by a plea or jury [*8]verdict, the immigration consequences would be the same. Under these circumstances, Defendant's plea and conviction may have been not only condign in their application, but may well have inured to his benefit.

Finally, Defendant's claim of ineffective assistance on the grounds that his second counsel, Ward, failed to challenge the propriety of the Rampersaud's plea allocution is without merit since the plea and allocution were already found to be sufficient by this Court in its 2010 Decision.

By reason of the foregoing, Defendant's motion is denied in all respects.

The Court considered the following papers on this application: 1) Notice of Motion dated September 10, 2010, together with Affidavits and Exhibits; 2) the People's Affirmation in Opposition dated October 15, 2010, together with Memorandum of Law and attached Exhibits and 3) Reply Affirmation dated October 27, 2010.

The foregoing constitutes the Decision and Order of this Court.

DATED: White Plains, New York

May 20, 2011

Hon. John P. Colangelo

County Court Judge [*9]