Defendant entered this country from his native Cuba on June 3, 1980. On July 27, 1988, the police observed the defendant sell crack cocaine to another individual. The defendant was arrested and the police recovered seventy-five vials of crack cocaine. The defendant was subsequently indicted, under indictment 7280-88, with various felony drug charges, including three class B felonies. On January 20, 1989, the defendant failed to appear for arraignment. He [*2]also failed to appear on February 3, 1989, and a warrant was issued for his arrest.

On December 11, 1989, the defendant was, once again, arrested, this time with sixteen vials filled with crack cocaine and seventy-five empty vials. He was charged with various crimes, including at least one class B felony.

On December 14, 1989, the defendant was arraigned with respect to indictment 7280-88.

On January 26, 1990, defendant appeared in Criminal Court, with counsel, and consented to waiving indictment for his December arrest in exchange for a plea bargain. Defendant was thereafter charged, under SCI 606-90, for the crimes committed on December 11, 1989. Defendant then pled guilty, under indictment 7280-88, to a reduced charge of attempted sale of a controlled substance in the third degree and, under SCI 606-90, to a reduced charge of attempted possession of a controlled substance in the fifth degree. Under the plea agreement, defendant was promised concurrent sentences that would include six months in jail and five years on probation. The defendant was sentenced on March 1, 1990.

On October 7, 2001, the defendant was arrested for driving while intoxicated. He pled guilty to that charge on March 21, 2002, and was sentenced to a fine and three years probation.

On August 4, 2002, while the defendant's license was still revoked, he was, once again, arrested for drunk driving. On January 23, 2003, the defendant pled guilty to drunk driving, as a felony, and was sentenced to five years probation.

Defendant is not currently incarcerated and has never been subjected to any action by this country's immigration authorities.

In papers dated July 20, 2012, defendant, through counsel, moves to vacate the judgments of convictions and to vacate the pleas entered in January of 1990. In an affidavit submitted in support of his motion, defendant claims: "I was told by the Legal Aid lawyer that they had an offer for me and that I should take it.... I (sic) was not explained by my lawyer that if I accepted the plea, that it would have any effect on my immigration status. My immigration status was never discussed at all by my lawyer. Had I known then that if I pled [*3]guilty to the charges, that I would later have problems with my immigration status, I would not have chosen to accept the plea but would have tried to fight it or asked my lawyer to ask for another offer" (Affidavit of defendant, at 1). Apart from the eight page affirmation of counsel, no other evidentiary facts, exhibits or transcripts were submitted in support of defendant's application.

Defendant does not allege that he was affirmatively misadvised about the potential immigration consequences of his plea, only that those potential consequences were never discussed.The People have filed an answer in opposition. The People have included a copy of the plea minutes of January 26, 1990. The People contend the defendant's motion should be denied because defendant has failed to prove that his counsel was ineffective or that he was prejudiced by counsel's representation.

A judgment of conviction is presumed valid. A defendant moving to vacate his conviction bears the "burden of coming forward with sufficient allegations to create an issue of fact" (People v Session, 34 NY2d 254, 255-256 [1974]; People v Braun, 167 AD2d 164, 165 [1st Dept 1990]).

The "long-standing test for determining the validity of a guilty plea is whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant" (Hill v Lockhart, 474 US 52, 56 [1985][internal quotations omitted]; People v Hernandez, 98 AD3d 449, 449 [1st Dept 2012]).

In the context of a guilty plea, a defendant receives meaningful representation when he obtains "an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel" (People v Ford, 86 NY2d 397,404 [1995], citing People v Boodhoo, 191 AD2d 448, 449 [2nd Dept 1993]).

Under federal law, a defendant challenging the propriety of his guilty plea, on the ground of ineffective assistance of counsel, must meet the two-prong test set forth in Strickland v Washington (466 US 668 [1984]). Under Strickland, the "defendant must show that counsel's performance was deficient" and "that the deficient performance prejudiced the defense" (Strickland, 466 US at 687). Therefore, in order to establish ineffective assistance of counsel, a defendant must prove both the absence of a strategic or other legitimate explanation for counsel's conduct and a demonstration of prejudice (Strickland, 466 US at 687). [*4]

According to New York's interpretation of this federal constitutional requirement, a defendant need not prove prejudice: he may prevail merely by establishing that his attorney failed to provide meaningful representation by demonstrating "the absence of strategic or other legitimate explanations" for counsel's allegedly deficient representation (People v Caban, 5 NY3d 143, 152 [2005], quoting People v Rivera, 71 NY2d 705, 708-709 [1988]). Under Article I,§6 of the New York Constitution, success of an ineffective assistance of counsel claim rests on whether or not "the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of representation, reveal that the attorney provided meaningful representation" (People v Henry, 95 NY2d 563, 565 [2000], quoting People v Baldi, 54 NY2d 137, 147 [1981]).

Effective assistance of counsel boils down to "meaningful representation" not "perfect representation" (Ford, 86 NY2d at 397, quoting People v Modica, 64 NY2d 828, 829 [1985]). Hindsight does not transform tactical errors into ineffective assistance (Baldi, 54 NY2d at 151, citing People v Jackson, 52 NY2d 1027 [1981]). In the end, a "claim of ineffectiveness is ultimately concerned with fairness of the process as a whole rather than its particular impact on the outcome of the case" (Caban, 5 NY3d at 156; People v Benevento, 91 NY2d 708, 741 [1998]; Baldi, 54 NY2d at 147).

"Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has been proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, allegedly deficient and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the alleged action might be considered sound trial strategy'" (Strickland, 466 US at 689, quoting Michael v Louisiana, 350 US 91, 101 [1955][internal citation omitted]).

Here, defendant's motion is based on his assertion that defense counsel's failure to properly advise him of the potential immigration consequences associated with pleading guilty was per se ineffective [*5]assistance of counsel, requiring that his twenty-two year old pleas be set aside.

In Padilla v Kentucky (— US—, 130 S Ct 1473 [2010]), the United States Supreme Court held that, in connection with a guilty plea, effective assistance of counsel requires a defendant's attorney accurately advise the client of the immigration consequences of any potential plea. The Court ruled that where deportation is a "clear consequence" of a guilty plea, an attorney's failure to advise the client of that consequence satisfies the first prong of the two-part Strickland test for ineffective assistance of counsel. The Court concluded that, at least where the "terms of the relevant immigration statute are succinct, clear, and explicit in defining the removal consequence[s] for . . . conviction," constitutionally competent counsel must advise a defendant that his conviction makes him subject to mandatory deportation (Padilla, 130 S Ct at 1477).

As Padilla recognized, before the enactment of the Antiterrorism and Effective Death Penalty Act, effective April 26, 1996, and the Illegal Immigration Reform and Immigrant Responsibility Act, effective April 1, 1997, deportation was not a mandatory consequence of a criminal conviction because judges had the discretion to recommend against deportation. Assuming defense counsel was even informed by her client that the defendant was not a citizen of the United States, defendant's deportation was not triggered merely because of his 1990 guilty pleas, and if removal proceedings were subsequently commenced, the defendant could, under the law in effect at the time, apply for discretionary relief from deportation. Padilla v Kentucky was the Supreme Court's reaction to the aforementioned amendments to the immigration law that, in it's view, "dramatically raised the stakes of a noncitizen's criminal conviction" (Padilla, 130 S Ct at 1480). Accordingly, defendant's former counsel could not be deemed ineffective for not advising her client about significant changes in the immigration law that would not occur until six years after his plea. Counsel's representation was reasonable for the time period in which it was provided.

As recently as 2003, our Court of Appeals held that "[t]he mere failure to advise a defendant of the possibility of deportation does not constitute ineffective assistance of counsel" (People v McDonald, 1 NY3d 109, 114 [2003]).

In short, Padilla states that under federal law a defense attorney is ineffective if he or she fails to inform a non-citizen criminal defendant of the immigration consequences of a plea, where and when the consequences of such plea are clear, and if such consequences are not clear, the attorney [*6]must inform the defendant that there might be adverse immigration consequences resulting from a guilty plea.

Padilla should not be read to undermine such a longstanding principle [regarding judicial scrutiny of counsel's performance], particularly when matters collateral to a criminal case—rather than the central issue of guilt or innocence — 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 whichit relies), is clear: to defer to the considered judgment of trial counsel ... as long as the defendant is made aware of the possible negative collateral ramifications of his plea

Initially, it may appear as if the New York standard neglects a requirement of the federal standard: according to the former, the particular impact [of the attorney's advice] on the outcome of the case is irrelevant (Caban, 5 NY3d at 156), while the latter takes into account the advice's effect on "the result of the proceedings" (Strickland, 466 US at 694). However, as Rosario v Ercole indicates, this is only an apparent contradiction: "[f]undamental fairness analysis by its nature must always encompass prejudice" such that under the New York standard the "result of the proceedings" prong in Strickland is effectively redundant (Rosario v Erole, 601 F3d 118, 125 [2nd Cir 2010]).

We note that defendant's plea was taken on December 23, 1996. We want to express no opinion on the applicability of Padilla to pleas taken before 1996, a year in which there were significant changes in immigration law.

___________________________

Vincent M Del Giudice

Judge of the Court of Claims

Acting Supreme Court Justice [*10]

Dated: November 7, 2012

Brooklyn, New York