[*1]
| People v Mercado |
| 2011 NY Slip Op 51373(U) [32 Misc 3d 1220(A)] |
| Decided on July 21, 2011 |
| Supreme Court, Bronx County |
| Livote, J. |
| Published by New York State Law Reporting Bureau
pursuant to Judiciary Law § 431. |
| As corrected in part through August 9, 2011; it will
not be published in the printed Official Reports. |
Supreme Court, Bronx County
The People of the State
of New York, Plaintiff
against
Jose Mercado, Defendant
|
1106/2004
Leonard Livote, J.
Defendant moves, pursuant to section 440.10(1)(h) of the Criminal
Procedure Law to vacate his conviction on the grounds that he was denied the effective
assistance of counsel. Specifically, the defendant argues that he was denied the effective
assistance of counsel because his attorney did not advise him of the immigration consequences of
his conviction (Padilla v Kentucky, 130 S. Ct. 1473 [2010]).
By Order dated March 8, 2011, the Court determined that Padilla should be
applied retroactively and directed that a hearing be held. The hearing was held on June 21, 2011.
Based on all of the credible evidence, the Court makes the following findings of fact and
conclusions of law.
Findings of Fact
The defendant is a 27
year old native and citizen of the Dominican Republic.
The defendant was admitted into the U.S. on or about July 29, 1992 as an FX-3 child
(Under 21 Years Old) of a Lawful Permanent Resident. The defendant was 9 years old at the time
of his admission. His entire immediate family resides in the United States and they are lawful
permanent residents. The defendant attended special education classes before he dropped out of
high school. The defendant's two children are U.S. citizens.
On February 18, 2004, the defendant sold crack cocaine to an undercover police
officer as part of a buy-and-bust operation. The defendant was subsequently arrested and 15 bags
of crack, as well as pre-recorded buy money, was recovered from his person.
As a result of this crime, the defendant was charged with Criminal Sale of a
Controlled Substance in the Third Degree, in violation of New York State Penal Law
§220.39(1); Criminal Possession of a Controlled Substance in the Third Degree, in violation
of New York State Penal Law § 220.16(1); and Possession of a Controlled Substance in the
Fifth degree, in violation of New York State Penal Law § 220.06(5).
[*2]
The defendant appeared for arraignment on
March 1, 2004. He was represented by Mr. Michael Hurson of the Legal Aid Society. The
defendant entered a conditional plea of guilty to Criminal Sale of a Controlled Substance in the
Third Degree, a Class B Felony in violation of New York State Penal Law §220.39(1), with
the understanding that if he successfully completed the outpatient drug treatment program, that
would last up to two and half years in length, he would then be allowed to come back to Court,
withdraw his guilty plea to the Class B felony and instead plead guilty to a Class C felony which
would allow the Court to sentence the defendant to five years probation.
Mr. Hurson did not advise the defendant of the consequences that his plea could
have on his immigration status.
The defendant successfully completed the outpatient drug treatment program and
was congratulated by the Court and the People for having completed the program pursuant to the
rules of the Bronx County Drug Treatment Court. Accordingly, On April 1, 2005, the defendant
was allowed to withdraw his previously entered guilty plea and to replead to the charge of
Criminal Sale of a Controlled Substance in the Fourth Degree, a Class C felony. The minutes of
this proceeding indicate that the defendant was not advised that this re-plea could also have
consequences on his immigration status.
By a Notice to Appear dated February 11, 2010, the defendant was notified that the
Department of Homeland Security was seeking his removal from the United States. The Notice
to Appear alleged that the defendant's conviction in the instant case provided a basis for his
removal pursuant to sections 237(a)(2)(B)(i) and 237(a)(2)(A)(iii) of the Immigration and
Nationality Act (INA). Section 237(a)(2)(B)(i) of the INA states:
"[c]onviction.-Any alien who at any time after admission has been convicted of a
violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United
States, or a foreign country relating to a controlled substance (as defined in section 102 of the
Controlled Substances Act (21 U.S.C. 802)), other than a single offense involving possession for
one's own use of 30 grams or less of marijuana, is deportable."
Section
237(a)(2)(A)(iii) states:
"[a]ggravated felony.-Any alien who is convicted of an aggravated felony at any
time after admission is deportable."
On March 8, 2010 the Department
of Homeland Security added an additional allegation that the defendant's conviction for Criminal
Possession of a Controlled Substance in the Seventh Degree on September 23, 2004, constituted
a basis for his removal.
The defendant was, apparently, ordered to be deported and was awaiting deportation
when the Court ordered the hearing. The decision of the Immigration Court is not part of the
[*3]record in this case and the precise basis for the defendant's
deportation is unknown.
Conclusions of Law
A defendant who seeks to challenge on federal grounds the validity of a guilty plea
on the basis of ineffective assistance of counsel is required to establish that defense counsel's
advice fell below the two-prong test set forth in Strickland . Washington, (466 U.S. 668,
104 S.Ct. 2052, 80 L.Ed.2d 674 [1984]). The first prong of the Strickland test, known as
the performance prong, requires a showing that counsel's representation fell below an objective
standard of reasonableness (Hill v Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d
203 [1985]). The second prong, also known as the prejudice prong, "focuses on whether
counsel's constitutionally ineffective performance affected the outcome of the plea process"
(Hill, 474 U.S. at 59). In order to satisfy this prong, a "defendant must show that 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" (Hill, 474 U.S. at 59).
In Padilla v Kentucky, the Supreme Court ruled that, based on prevailing
professional norms, the failure of an attorney to advise his or her client regarding the risk of
deportation falls below the performance prong of Strickland (Padilla, 130 S.Ct. at
1482-3). In the instant case, the defendant was not advised by counsel of the immigration
consequences of his plea either at the time of his plea or when he was permitted to replead.
Accordingly, the defendant has met the first prong of the Stickland test.
Where, as here, the defendant is arguing that counsel was ineffective for failing to
advise him of the immigration consequences of his plea, the defendant "must convince the court
that a decision to reject the plea bargain would have been rational under the circumstances"
(Padilla, 130 S.Ct. at 1485). The defendant argues that such a decision would have been
rational because, had he been informed of the consequences, he would have refused any
disposition that included a sale of narcotics. The sale of narcotics is an aggravated felony for
purposes of the INA (INA § 1101(a)(43)(B)). Section 1229b of the INA states:
(a) Cancellation of removal for certain permanent
residents
The Attorney General may cancel removal in the case of an
alien who is inadmissible or deportable from the United States if the
alien:
(1) has been an alien lawfully admitted for permanent
residence for not less than 5 years,
(2) has resided in the United
States continuously for 7 years after having been admitted in any status,
and
(3) has not been convicted of any aggravated
felony.
[*4]
Thus, a person convicted of
an aggravated felony is ineligible for the discretionary relief from deportation otherwise available
pursuant to INA § 1229b(a).
In assessing whether a decision to reject the plea bargain would be rational, the Court
finds that, given the leniency of the disposition that was offered and accepted in this case, a
disposition that did not include a sale of drugs and possibly including a jail sentence was entirely
feasible. Furthermore, this is one of those cases where " [p]reserving the client's right to remain
in the United States may be more important to the client than any potential jail sentence"
(Padilla, 130 S.Ct. at 1483 (quoting INS v. St. Cyr, 533 U.S. 289, 323, 121 S.Ct.
2271, 150 L.Ed.2d 347 [2001])). As the Supreme Court noted "[u]nder contemporary law, if a
noncitizen has committed a removable offense after the 1996 effective date of these amendments,
his removal is practically inevitable but for the possible exercise of limited remnants of equitable
discretion vested in the Attorney General to cancel removal for noncitizens convicted of
particular classes of offenses" (Padilla, 130 S.Ct. at 1480). Although discretionary relief
from removal may be a remote possibility for the defendant, it would, if available, represent his
only avenue to remain in the United States. Without knowledge that he was foregoing the
possibility of discretionary relief the defendant, on two occasions, the date of his plea and his
re-plea, entered pleas that made his deportation "practically inevitable." Accordingly, the
defendant was prejudiced by the failure of his attorney to advise him of the deportation
consequences of his plea.
Conclusion
The defendant has established that he was not afforded the effective assistance of
counsel when he entered his plea. Accordingly, his motion to vacate the conviction pursuant to
section 440 of the Criminal Procedure Law is granted.
This constitutes the Decision and Order of the Court.
LEONARD LIVOTE. A. J.S.C.