On December 14, 2005, the defendant pleaded guilty to PL § 221.10 (2), criminal possession of marijuana in the fifth degree, in exchange for a conditional discharge and seven days of community service (the "2005 conviction"). On November 24, 2009, the defendant Jermaine Bennett moved to vacate judgment pursuant to CPL § 440.10 (1) (h). By decision/order [*2]dated May 26, 2010, the Court ordered that a hearing be held to determine whether the judgment was obtained in violation of the defendant's Sixth Amendment right to counsel.

That hearing was held before me on December 20, 2010. The defendant testified at the hearing via video conference from the Hudson County Jail where he is currently detained by Immigration and Customs Enforcement. The defense also called Jeffrey Pogrow, Esq., his court-appointed attorney who represented him in the underlying criminal case.

FINDINGS OF FACT

In June 2005, the defendant was arrested and charged with two counts of felony criminal possession of marijuana (CPL §§ 221.25, 221.20) and two counts of misdemeanor criminal possession of marijuana (CPL §§ 221.15, 221.10[2]). The defendant admitted to having "possessed" a "little brick" of marijuana at the time of his arrest, but claims that the marijuana was found in the trunk of the car in which he was driving at that, and not in the car itself. However, the defendant testified that he did not know he was facing felony charges or potential jail time as a result of the underlying case.

At the arraignment, the court appointed Attorney Pogrow to represent him in his criminal case. As to his discussion with Attorney Pogrow, the defendant testified as follows:

I told Mr. Pogrow I wanted to fight this case. And he was telling me that he was — the DA was making an offer, so I should just go ahead and take that plea, but I told him, listen, I wanted to fight this case.

...

I told [Attorney Pogrow] that my father was filing a petition and it was pending, and he told me, don't worry about it, this won't affect that petition, so I should just go ahead and enter this plea.

...

I told [Attorney Pogrow] if this plea, particular plea was going to affect my application, then let's fight. So he's like, no, I don't think this plea will affect your application, no, I don't think so, it will not, it will not affect your application.

The defendant also testified about the entry of his guilty plea. The defendant was also asked about Attorney Pogrow's representation to the court during the defendant's allocution that he "discussed with [the defendant] a possible immigration consequence":

Well, I thought that meant was (sic) — all that we discussed earlier, meaning my father's application pending, me being here illegally and stuff like that. I thought that that (sic) was basically all the consequences he was talking about. That's what I thought it meant.

On cross examination, the defendant admitted that he knew that having criminal [*3]convictions could affect his immigration status before 2005, as a result of prior contacts the defendant had with the criminal justice system.

The defendant testified that he first entered the US with a visitor's visa in July 1995. He attempted to legalize his status in the US three times: [1] his father filed a petition in September 1999; [2] his mother petitioned in June 2006; and [3] his wife filed a petition after the defendant and her married in 2008. His father's petition was not approved because his father failed to prove paternity prior to his death in 2006. His mother's petition was unavailing because since she was only a Green Card holder, the defendant "wouldn't be able to get [his] Green Card until after... a couple of years."

The defendant's wife's petition was approved. However, at his interview in January 2009, the defendant was notified that his own application for a Green Card was denied because of the 2005 conviction. The defendant was then immediately arrested and placed into immigration proceedings. The defendant has been detained by Immigration and Customs Enforcement since then and is not currently eligible for bail due to his 2005 conviction.

The defendant further testified that he only learned that his 2005 conviction was grounds for deportation in January 2009 when he was arrested at his interview and placed into immigration court proceedings.

Attorney Pogrow has been an 18-B criminal defense lawyer since 1983 and has been appointed to the Central Screening Committee for 18-B attorneys of the Appellate Division, First Department since the mid 1990s. Attorney Pogrow testified that he told the defendant he was charged with a felony and that he could face jail time in this case. Attorney Pogrow testified that he never told the defendant that he didn't think there would be any immigration consequences if the defendant took the ultimate plea bargain. Rather, Attorney Pogrow testified that he advised the defendant throughout the pendency of his case that the plea offers "would affect his status in the US", but Attorney Pogrow admitted that he "didn't know the exact nature" of the affect. Mr. Pogrow testified that he told the defendant to "speak to [his] family, speak to [his] mother who put the [immigration application] papers together, speak to somebody in the field, it's not my field, I'm not an expert."

Mr. Pogrow claimed that when he represented to the court at the defendant's allocution that he had advised the defendant of a "possible" immigration consequence, that he used the term possible because he had advised the defendant that the plea "could affect [the defendant's] being in the United States, being (sic) his immigration status here."

The defendant also testified that his attorney asked to be retained. The defendant stated that he "told Mr. Pogrow that [he] wanted to get an attorney... and he's, like, you know, you could pay me..." Attorney Pogrow adamantly maintained that "[a]t no time whatsoever did [he] ever ask to be retained in this matter... I take my obligations on the Central Screening Committee very seriously."

CONCLUSIONS OF LAW

The defendant moves to vacate the 2005 conviction on the basis that Attorney Pogrow's advice was constitutionally insufficient. The motion is denied for the reasons that follow.

First, I find Attorney Pogrow's testimony to be credible and the defendant's testimony to be largely incredible. Second, I find that Attorney Pogrows' advice was constitutionally [*4]sufficient. Third, even if I find that Attorney Pogrow's advice was constitutionally infirm, the defendant has not demonstrated that he was prejudiced thereby.

Before deciding whether to plead guilty, a defendant is entitled to "the effective assistance of competent counsel" (Strickland v. Washington, 466 US 668 [1984]; McMann v. Richardson, 397 US 759 [1970]). The US Supreme Court has held that the Sixth Amendment requires criminal defense attorneys to advise their noncitizen clients if there is a risk of deportation as a consequence of a conviction (Padilla v. Kentucky, 130 SCt 1473, 1482 [2010]).Under Strickland, the Court must first determine whether Attorney Pogrow's representation "fell below an objective standard of reasonableness" (Strickland, 466 US at 687). The second prong of this test is whether "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different" (id. at 694).

The credible hearing testimony demonstrated that the defendant knew he was facing serious felony charges and jail time. The felony complaint itself, as well as Attorney Pogrow's testimony belies the defendant's contentions regarding the felony charges. The defendant's testimony concerning Attorney Pogrow's statement on the record during the defendant's allocution that he had discussed a possible immigration consequence with the defendant is also not credible because it lacks any rationality. The defendant failed to offer any explanation for why he would stand by while his attorney represents to the court that he discussed possible immigration consequences with the defendant. Nor does the defendant's explanation for what he thought "a possible immigration consequence" meant make sense. Further, I do not find the defendant's testimony about Attorney Pogrow's alleged request to be retained credible. Therefore, I discount the defendant's version of what advice Attorney Pogrow gave concerning plea negotiations and potential immigration consequences. Rather, I find Attorney Pogrow's account of these discussions to be candid and credible.

Given the particular circumstances of the defendant's plea and Attorney Pogrow's accurate, albeit incomplete, advice, I find that Attorney Pogrow satisfied his constitutional duty under Strickland as clarified by Padilla to "do no more than advise a non-citizen client that pending criminal charges may carry a risk of adverse immigration consequences" (Padilla,

130 SCt at 1483). Attorney Pogrow advised the defendant that the plea may have a possible immigration consequence, and while he didn't specifically use the term deportation, Attorney Pogrow certainly indicated that the plea may negatively impact the pending immigration petition filed on his behalf by his mother. Moreover, Attorney Pogrow did not offer any affirmative mis-advice, but rather, told the defendant that he should speak to an immigration lawyer. The defendant conceded that he did not do this. The defendant has no one but himself to blame for his current predicament with regards to his immigration status in the US.

Furthermore, Attorney Pogrow's advice was not otherwise deficient under Strickland's performance prong. Attorney Pogrow obtained an incredibly favorable plea agreement on behalf of the defendant, to wit, a conditional discharge and seven days community service. This disposition conditionally guaranteed that the defendant would not serve any jail time. While not entirely eliminating the risk of removal, such a disposition may reduce the risk of removal (See United States Immigration and Customs Enforcement, Criminal Alien Program http://www.ice.gov/news/library/factsheets/cap.htm; Bernstein, Immigration Officials Often Detain Foreign-Born Rikers Inmates for Deportation, New York Times, Aug. 25, 2009, at A17.) [*5]

Had the defendant been convicted after trial of either the felony or misdemeanor counts of possession of marijuana, could have been sentenced to upwards of 2 and one-half years in jail (CPL § 70.70). It becomes apparent just how favorable and thereby objectively reasonable this plea was in light of the defendant's admission that he possessed a "little brick" of marijuana and that he had no idea what defenses he would assert at trial.

Finally, the defendant's failure to identify any defenses he might assert in a trial on the charges, as well as his failure to even protest his innocence, illustrates why the defendant has not met the second prong of Strickland (see Hill v. Lockhart, 474 US 52 (1985); see also People v Cristache, 29 Misc 3d 720 [NYC Crim Ct Qns Co 2010]). Even if the defendant was specifically advised that his guilty plea could lead to deportation, it is likely that the defendant would have nonetheless taken the plea in order to avoid a potential jail sentence. The defendant has not shown that immigration consequences were an important or overarching concern to him, insofar as he admitted that he knew that having criminal convictions could affect his immigration status before 2005.

This constitutes the Court's decision afer hearing. Accordingly, the defendant's motion to vacate judgment of conviction is denied.

Dated:New York, NY

January 11, 2011

______________________

Hon. Lynn R. Kotler, J.C.C.