[*1]
| People v Marshall |
| 2012 NY Slip Op 51963(U) [37 Misc 3d 1210(A)] |
| Decided on October 15, 2012 |
| Supreme Court, Bronx County |
| Livote, 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| This opinion is uncorrected and will not be
published in the printed Official Reports. |
Supreme Court, Bronx County
The People of
the State of New York, Plaintiff,
against
Garnet Marshall, Defendant.
|
3018/1995
Leonard Livote, J.
The defendant moves both pro se and through an amended motion
made by his attorney, pursuant to CPL § 440.10(1)(g), to vacate the judgment of
conviction entered on July 25, 1995.
Background
The defendant, a
native of Dominica, was admitted to the United States as a lawful permanent resident on
December 10, 1984. On April 3, 1995, the defendant was arrested and charged with
Criminal Possession of a Controlled Substance in the Third Degree and other crimes. On
April 26, 1995, the defendant waived prosecution by indictment and agreed to be
prosecuted by a Superior Court Information. The defendant then pled guilty to Attempted
Criminal Sale of a Controlled Substance in the Third Degree. On July 25, 1993, the
defendant was sentenced to five years probation.
At the time of the defendant's plea, the defendant was eligible for a
discretionary waiver of deportation pursuant to Immigration and Nationality Act of 1952
(8 USC 1182(c)). However, the availability of discretionary waivers was largely
eliminated by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),
enacted on April 24, 1996 (110 Stat. 1214), and the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (IIRIRA), enacted on September 30, 1996 (110
Stat. 3009—546).
By a Notice to Appear dated November 8, 2011 brought by INS against the
defendant, the defendant was informed that he was subject to removal from the United
States. The grounds for removal include the conviction in the instant case.
Now, in his amended motion papers, the defendant moves that this court
vacate the judgment of conviction pursuant to CPL §440.10, alleging that counsel
rendered ineffective assistance by failing to inform him of the possible negative
immigration consequences of his guilty plea as required by Padilla v Kentucky
(130 U.S. 1473 [2010]).
Under New York State law, a claim of ineffective assistance of counsel must
be rejected when "the evidence, the law, and the circumstances of a 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, 147 [1981]).
"In the context of a guilty plea, a defendant has been afforded [*2]meaningful representation when he or she receives an
advantageous plea and nothing in the record casts doubt on the apparent effectiveness of
counsel" (People v Ford, 86 NY2d 397,404 [1995]).
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). Where, as here, the
defendant claims 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). If a defendant's claim fails under the state standard, it must also fail under
the federal standard because the "state standard thus offers greater protection than the
federal test" (People v
Caban, 5 NY3d 143, 156 [2005]).
The defendant's first allegation of ineffectiveness alleges that his attorney
allowed "unlawfully obtained, inaccurate statements (evidence) to be used against
defendant" at trial. As a threshold matter, there was no trial. Moreover, the defendant's
supporting affidavit does not identify the allegedly unlawfully obtained evidence. Thus,
there is no basis on which to judge counsel's effectiveness and this allegation is without
merit.
The defendant's next argument is that his attorney should have "stopped" the
criminal complaint and indictment because they did not conform to the requirements of
CPL §§200.50(7) and 200.50. There was no defect in the indictment because
the defendant waived indictment and there is no defect in the Superior Court
information. In any event, the defendant does not elaborate on how the complaint is
defective and the Court finds this allegation to be without merit.
The defendant's remaining arguments, and the crux of his motion, relate to
the immigration consequences of his plea. The defendant argues that the lack of a lab
report should have been used to secure a plea to a different charge that would not result
in deportation; that his attorney lacked candor by not informing him of the immigration
consequences and that these failures render his attorney's performance deficient in light
of Padilla (supra).
If the immigration consequences of the plea are left aside, the defendant's
counsel was effective. The defendant was facing a maximum period of incarceration of
twenty-five years and received a sentence of five years probation. This sentence was
especially beneficent in light of the fact that the defendant appears to concede his guilt
stating that he "is not suggesting that his offense should have went unpunished." Indeed,
the defendant had no complaints about his 1995 plea bargain until the deportation
proceedings were commenced.
In Padilla, 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 [*3]performance prong of
Strickland (Padilla, 130 S.Ct. at 1482-3). This was based on the Court's
reasoning that, in some cases," [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])). Furthermore, advice about deportation
consequences has become increasingly important because, as the Padilla Court
stated, "[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).
The People argue that, because the defendant pleaded guilty in 1995, prior to
the 1996 amendments to the Immigration and Nationality Act, Padilla does not
apply. The Padilla Court observed that "[f]or at least the past 15 years,
professional norms have generally imposed an obligation on counsel to provide advice
on the deportation consequences of a client's plea." (Padilla at 130 S.Ct. at 1485).
The defendant's plea in this case was within the fifteen (15) year period preceding
Padilla; accordingly Padilla is presumptively applicable. However, the
Court recognized that removal only became "practicably inevitable" after the 1996
amendments that postdate the defendant's conviction.
The Padilla Court noted two trends in immigration law that led to its
decision. The increasing number of crimes for which a non-citizen could be deported and
diminishing availability of discretionary relief from deportation. In 1988 the Anti-Drug
Abuse Act of 1988 made drug trafficking offenses aggravated felonies for which a
person could be deported (8 U.S.C. § 1251(a)). Attempted Criminal Sale of a
Controlled Substance in the Third Degree is an aggravated felony (Leader v
Blackman, 744 F. Supp. 500, 504 [S.D.N.Y.1989]). Thus, the defendants plea
rendered him eligible for deportation. However, because the plea was taken before the
enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and
the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), the
defendant is still eligible for discretionary relief from deportation pursuant to §
212(c) of the Immigration and Nationality Act of 1952 (INS v St. Cyr, 533 U.S.
289 [2001]).
At the time of the defendant's plea, the aggravated felony provisions had
been law for almost seven (7) years. The fact that the plea subjected the defendant to
deportation was serious enough to require his attorney to advise him of it,
notwithstanding the availability of discretionary relief.
The People also argue that the defendant's motion should be summarily
denied because the defendant's factual allegations are not sufficient to support his claim.
The defendant avers that he was not informed of the immigration consequences of his
plea and that, had he known of the consequences, he would have gone to trial. These
allegations are sufficient to support a post-Padilla ineffective assistance of counsel claim.
The People argue that the motion is insufficient because it does not include an affidavit
from his former attorney.
A motion to vacate judgment may be summarily denied when "[a]n
allegation of fact essential to support the motion ...is made solely by the defendant and is
unsupported by any other affidavit or evidence, and under these and all the other
circumstances attending the case, there is not a reasonable possibility that such allegation
is true" (CPL § 440.10(4)(d)). Although the allegations here are made solely by the
defendant, it cannot be said that there is no reasonable [*4]possibility that they are true. In some cases ineffective
assistance of counsel claims have been denied because there was no affidavit from the
trial counsel. For example, in People v Stewart (295 AD2d 249 [1st Dept 2002]),
the First Department upheld the summary denial of an ineffectiveness claim because the
"defendant's papers were deficient in that they lacked an affirmation from trial counsel
explaining his strategic decisions, or any explanation for the absence of such an
affirmation." In Stewart, the issue concerned strategic decisions made during trial, an
issue the attorney would have particular knowledge of. In the instant case, the issue is not
why the attorney gave any particular advice, it is whether he did so at all. On this issue,
the defendant's knowledge is equal to his attorney's. Although the defendant's credibility
is compromised by his interest in the case, it does not rise to the level that there is no
reasonable possibility that his allegations are true.
The People further argue that the motion should be summarily denied
because the terms of the plea bargain establish that the defendant did not suffer any
prejudice. In order to obtain relief under Padilla, the defendant "must convince
the court that a decision to reject the plea bargain would have been rational under the
circumstances" (Padilla at 1485). The agreed upon sentence of five years
probation was undoubtably lenient in light of the fact that the defendant was facing up to
twenty-five (25) years incarceration. On the other hand, the defendant has resided in this
country since he was eight (8) years old and his wife, mother, two (2) sisters and brother
all reside in the U.S. These facts are sufficient to raise an issue of fact as to whether or
not the defendant would have foregone this plea with a sentence of probation had he
known of its immigration consequences.
This constitutes the Decision and Order of the Court.
___________________________
A.S.C.J.