On April 4, 2012, the Court conducted an evidentiary hearing to decide the issue of the nature of immigration legal advice, if any, given to Defendant Juan Delcastillo before entry of his guilty plea. Defendant now seeks to withdraw the said plea, entered in 1996, relying upon ineffective assistance of trial counsel respecting the issue of the plea's impact upon his immigration status.^[FN1]

Defendant's motion, pursuant to CPL §440.10, seeks to vacate his conviction for Assault in the Second Degree (Penal Law §120.05) and for Bail Jumping in the First Degree (Penal Law §215. 57) which convictions were entered by plea(s) in Indictment No. 8114-1988.^[FN2] Defendant says he would not

have pleaded guilty to the charges if he had known he would be subject to deportation because of the conviction. Consequently, the Court sentenced Defendant to time served, probation of five years, community service, and imposition of mandatory surcharge and victim's assistance fees (see, Defendant's Exhibit A).

Hearing [*2]

Two witnesses (David Goldsmith, Esq., and Defendant) testified at the hearing about whether Movant received legal advice concerning the plea's effect upon his immigration status.

First, Attorney Goldstein, one of Defendant's two trial attorneys, testified he lacked any recollection whether Defendant even requested advice about the proposed plea's impact upon immigration status. While unable to recall any advice request, Goldstein theorized the only possible response to his client would have been for the client to contact an immigration specialist.

Second, Defendant testified on his own behalf about general discussions with Attorney Goldstein about the potential plea, but even he could not recall whether Goldstein (or anyone else) advised him about the plea's effect upon his immigration status (Tr. pages 17 to 19). Defendant does concede he did not consult, at that time, any immigration lawyer about the plea (Tr. page 19).^[FN3]

Post Hearing Submissions

With the Court's leave, Defendant filed immigration specialist Lloyd Munjack's letter explaining the legal status of the Justice Department's current immigration charges against Defendant, concluding that some charges were deportable offenses.

Likewise with the Court's leave, the prosecutor's submitted a post trial memorandum of law arguing, inter alia, that Defendant failed his preponderance of evidence burden needed to establish that he received constitutionally ineffective assistance of counsel, otherwise providing a basis to justify vacatur of the plea (see, CPL §440.30[6]). The District Attorney dismisses Defendant's arguments as incredible, contradictory and unsubstantiated by evidence. Instead, the prosecutor says, Defendant received effective assistance from trial counsel and deserves dismissal of his prayer which is only supported by self-serving testimony.^[FN4]

Legal Arguments

Defendant relies upon the Supreme Court's recent decision in Padilla v. Kentucky, — US —, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), as basis for arguing that his criminal trial counsel's failure by omission ^[FN5] to advise about the effect of a guilty plea upon his immigration status results in ineffective assistance of counsel and, therefore, requires that the guilty pleas be vacated.

According to Defendant, Padilla expands the protection afforded non-citizen criminal defendants in this State where our Court of Appeals previously found erroneous advice about deportation consequences can constitute a constitutional violation as ineffective assistance of counsel, especially because Defendant says he would not have pled guilty except for that advice (see generally, People v. McDonald, 1 NY3d 109 [2003][affirmative advice]; People v. Peque, 88 AD3d 1024 [3rd Dept. 2011]). In this case, Defendant makes the required representation of reliance.

In response, the prosecutor argues against Padilla's retroactivity (see generally, People v. Feliciano, 31 Misc 3d 128A [Sup Ct. App Term 1st Dept. 2011]). Instead, the District Attorney, citing Feliciano, says counsel's conduct must be measured by professional norms existing at the time — almost two decades ago — when Defendant's plea was originally taken. Pre-Padillo, State law required an affirmative misrepresentation about immigration status be given Defendant. By contrast, the prosecutor [*3]says the courts did not recognize a defense counsel's obligation to come forward to advise a defendant about immigration as a ground for ineffective assistance of criminal counsel when a plea was entered (see generally, People v. Ford, 86 NY2d 397 (1995) (court's and counsel's failure to advise plea's collateral effect upon immigration not grounds for vacating guilty plea). According to the District Attorney, the Ford case shows the status of state law when Defendant's plea was entered in this case.

Discussion

When the plea was entered, our Court of Appeals had already established that counsel's affirmative misrepresentation to a non-citizen regarding deportation consequences of a contemplated guilty plea constituted deficient performance and established an ineffective assistance of counsel constitutional claim (see generally, People v. Glasgow, 2012 NY Slip Op 3479 [3rd Dept. 2012]; People v. Mills, 28 Misc 3d 1236A [Crim. Ct. Kings 2010]). Based upon the hearing, there is nothing supporting a finding that Defendant's criminal attorneys advised him, correctly or incorrectly, about the guilty plea's effect upon his immigration status. Further, no substantiation exists that Defendant in fact asked counsel about the plea's effect upon immigration status. While Padilla expands protection for non-citizens in criminal cases, the Court is not faced with determining whether Padilla is retroactive. As stated, our Court of Appeals has determined that erroneous advice concerning deportation consequences can constitute ineffective assistance of counsel when a defendant says he would not have pled guilty except for that advice (see generally, People v. McDonald, 1 NY3d 109 [2003]).

Because ofconcern that Defendant be permitted every opportunity to explore any possible constitutional violation concerning ineffective counsel assistance, the Court ordered an evidentiary hearing to find whether Defendant qualified for the People v. McDonald exception because counsel affirmatively misrepresented to a non-citizen regarding the effect upon deportation. The Court concludes that the hearing failed to produce evidence supporting finding a McDonald exception and, instead, the Court found that Defendant's case is composed solely of self serving statements.^[FN6]

BASED UPON the foregoing,^[FN7] it is

ORDERED that Defendant Juan Delcastillo's motion, pursuant to CPL §440.10, to vacate his conviction for Assault in the Second Degree and for Bail Jumping in the First Degree, is DENIED.

The foregoing constitutes the Decision and Order of the Court.

Dated: Bronx, New York

May 21, 2012

_________________________________HON. DOMINIC R. MASSARO, JSC