Defendant moves pursuant to CPL §440.10(1)(a) and (h) to vacate his judgment of conviction on the grounds that (1) the court affirmatively misadvised him of the deportation consequences of pleading guilty; that (2) the accusatory instrument was jurisdictionally defective; and that (3) he was not informed by the court or defense counsel that he was pleading guilty to a crime with a depraved indifference element. The People oppose.

Background

On May 4, 1997, Defendant was admitted to the United States as a lawful permanent resident. On January 13, 1998, he was charged, under Bronx County docket number 98X003012, with Attempted Arson in the Second Degree (PL §110/150.15) and Attempted Criminal Mischief in the Fourth Degree (PL § 110/145.00[1]). The felony complaint alleged that Defendant was observed pouring a liquid onto and under an apartment door and attempting to ignite it by using burning pieces of paper. On January 22, 1998, in Bronx Supreme Court, Defendant, through an Albanian interpreter, pled guilty under Superior Court Information (hereinafter SCI) number 0287-1998, to Reckless Endangerment in the First Degree (PL §120.25), a class D felony, in [*2]exchange for a sentence of five years probation with a condition of treatment in a residential psychiatric facility. The SCI charged that on or about January 12, 1998, Defendant, "under circumstances evincing a depraved indifference to human life, did recklessly engage in conduct which created a grave risk of death to another person by pour[ing] a liquid under [the] apartment door of Roberto Rolon while seven (7) people were inside and did attempt to light said liquid on fire." The SCI is signed by the Defendant and states that he read it.

On January 22, 1998, before Defendant pled guilty, the following colloquy took place before the Court between ADA Andrew Kampel, Esq. and defense counsel, David Feige, Esq.:

ADA Kampel: Your Honor, the original nature of this case is very serious charges. The People have agreed to plead to the D felony, reckless endangerment, for various reasons: One, there is a strong improbability claim in this case, as the liquid in question was, in fact, antiflame, which was at the time an inflammable liquid.

Mr. Feige: It doesn't burn.

ADA Kampel: Additionally, based on the defendant's age, lack of record whatsoever, and the fact the he works two jobs; and the fact that, talking to witnesses and evaluation of the case, we believe the best thing for the defendant in this case would be a residential long-term in house psychiatric program. I conferenced this case with my chief and we agreed to that.

Mr. Feige: I'd also like to add to the record and explain what we've agreed to. Mr. Ceni will be coming to my office this evening after reporting to Probation, and he already has an appointment next Tuesday at 6:00 pm, to which he'll be working with Christina Katz of my office, a social worker. We have arranged, if necessary, to secure an interpreter, to the extent it's necessary, and we will attempt, if it turns out to be necessary, to secure an Albanian psychiatrist. So quite an undertaking ....

Then Judge Safer-Espinosa allocuted Defendant as follows:

The Court: Mr. Ceni, have you discussed the taking of this plea with your attorney?

The Defendant: Yes.

The Court: And do you understand that you have the right to have this case presented to a grand jury and to have the grand jury vote as to whether there is enough evidence to hold you for trial in this matter; and that you, yourself , would have the right to testify before the grand jury?

The Defendant: Yes

The Court: By consenting to be prosecuted on this Superior Court Information, you're giving up those rights. Is that what you wish to do?

The Defendant: Yes.

The Court: You also understand that pleading guilty to the charge of reckless endangerment in the first degree is the same as if you were convicted of that charge after trial. So you're giving up your right to go to trial, your right to confront any witnesses against you, and the right against self-incrimination. Do you understand that and is [that] what you wish to do?

The Defendant: Yes.

The Court: This information alleges that on January 12, 1998, at about 10:00, at 2383 Washington Avenue, that you did pour a liquid under the apartment door of Roberto Rolon while seven people were inside that apartment, and you did try to light that liquid on fire. Is that true?

The Defendant: Yes

The Court: And finally, if there's any question regarding your legal status in this country, this conviction could serve as the legal basis for an order of deportation or for the denial of lawful permanent residence or citizenship. Do you understand?

The Defendant: Yes, I do.

On February 11, 1998, Defendant was sentenced as promised. Fourteen years having flown, on June 26, 2012, Defendant was issued a Notice to Appear from the Department of Homeland Security. The notice informed Defendant that he was being deported on the basis of his 1998 conviction for Reckless Endangerment in the First Degree.

Defendant's Position

First, Defendant asserts that at the time of his plea, the court misadvised him when stating: "if there's any question regarding your legal status in this country, this conviction could serve as the legal basis for an order of deportation or from the denial of lawful permanent residence or citizenship." In his affirmation, Defendant states that after receiving this admonition, he asked the Albanian language court interpreter for clarification and "the interpreter indicated that the judge was saying that immigration problems might happen if I did not have a green card." He maintains the warning led him to believe that, as a lawful permanent resident, he would not be deported. Defendant states that he would not have taken the plea if he had known it would lead to his deportation with no remedy and therefore his plea was not knowing, intelligent and voluntary.

Defendant submits that the immigration warning in this case is very similar to the judicial warning in People v. Diaz, one of the three cases consolidated for decision by the Court [*4]of Appeals in People v. Peque, 22 NY3d 168 (2013)^[FN1]. In 2006, Diaz, who had a green card, pled guilty to third degree drug possession. After conducting a plea allocution, the court said "[a]nd if you're not here legally or if you have any immigration issues these felony pleas could adversely affect you." (Peque, supra at 178-179). The Court of Appeals found that the judge's warning was inaccurate immigration advice. The Court remitted the case to the trial court to allow defendant Diaz to move to vacate his plea and develop a record relevant to the issue of prejudice.

In this case, Defendant has submitted affidavits from his counsel at plea, David Feige, Esq., and his counsel at sentencing, Daniel Ferreira, Esq. As relevant to the court's admonition on immigration, Mr. Feige affirms that he reviewed the file kept by the Bronx Defenders on this matter and it reflects that he was aware of Defendant's alien status but it does not indicate that he advised Defendant of immigration consequences. Counsel also states that now he realizes that the Court's admonition concerning immigration was misleading.

Secondly, Defendant asserts that the SCI was jurisdictionally defective because it alleged, that he attempted to light a liquid on fire but the SCI did not specify whether that liquid was flammable and in fact the record reflects that the liquid was non-flammable. Defendant argues this negates the reckless element of the crime charged.

Thirdly, Defendant claims ineffective assistance of counsel in that neither his counsel nor the court informed him that he was pleading guilty to committing a reckless act under circumstances evincing a depraved indifference to human life and that this act would certainly lead to a finding that the offense was a crime of moral turpitude and a deportable offense.

In his affirmation, Mr. Feige affirms that he does not believe that he discussed the concept of depraved indifference to human life with Defendant and further submits that Defendant was not depraved because he only wanted to scare his neighbors and his judgment was impaired by mental difficulties. Mr. Feige states that he himself did not understand the effect of the reckless conviction on immigration and that this led to his failure to negotiate a plea to a lesser charge.

Finally, Defendant submits that CPL §440.10 is the proper vehicle for his claims. Defendant maintains that he could only have raised the jurisdictional issue on appeal, but his other claims required an objection or motion to withdraw the plea. Furthermore, he maintains that he was justified in not raising the jurisdictional issue on appeal because he was never advised of the right to appeal by counsel or the court.

In his affirmation, Mr. Ferriera states that while working for the Bronx Defenders, he handled the sentencing part of this case. He affirms that he does not remember "whether I did or [*5]would have given the defendant notice of his right to appeal this plea of guilty. I believe that he waived the right to appeal."^[FN2] (Defendant's motion, Exhibit F).

In his reply affirmation, without elaborating, Defendant notes that he has not since been in trouble and that this crime is his only arrest.

People's Position

The People maintain that Defendant's claims must be denied on procedural grounds since they are all record based, including the jurisdictional claim, and should have been raised on direct appeal [CPL §440.10(2)(c); People v. Cuadrado, 9 NY3d 362 (2007)]. The People dispute Defendant's claim that his failure to raise the jurisdictional issues on appeal was justified because he was not given notice of his right to appeal. The People point out that a notation on the court status sheet signed by Justice Safer-Espinosa indicates that Defendant was given written notice of his right to appeal and, moreover, Mr. Ferreira's affirmation does not negate the court record on this matter. The People maintain that the proper procedural vehicle for a defendant's claim that he was not advised of the right to appeal is an application for a writ of error coram nobis in the Appellate Division (see People v. Schafer, 94 AD3d 778 [2d Dept 2012]).

The People point out that in Peque, supra, defendant Diaz raised his claim of inaccurate immigration advice by the court on direct appeal. Here, Defendant failed to raise his claim on direct appeal and therefore his motion must be denied pursuant to CPL §440.10(2)(c).

Furthermore, the People claim that Defendant's claims are without merit. They maintain that the court's immigration advice was accurate and should be interpreted as meaning that depending on Defendant's immigration status in this country, his conviction could have immigration consequences. The People also urge rejection of Defendant's assertion concerning his off the record conversation with the interpreter as unsubstantiated and far fetched.

The People argue that the SCI was jurisdictionally sufficient. The SCI charged Defendant with Reckless Endangerment in the First Degree in that Defendant "under circumstances evincing a depraved indifference to human life, did recklessly engage in conduct which created a risk of death to another person by pour[ing] liquid under [the] apartment door of Roberto Rolon while seven (7) people were inside and did attempt to light said liquid on fire." The People contend that because the SCI does not specify that the liquid is flammable does not render the SCI jurisdictionally defective. Rather, the issue of whether the liquid was flammable or not is an evidentiary issue that could have been litigated at trial.

The People also argue that Defendant's claims that his attorney was ineffective and that the court erred because he was not informed that he was pleading guilty to a crime with a depraved indifference element should be rejected. Evidenced by the SCI itself, Defendant acknowledged with his signature that he read the SCI which stated that he was being charged with having committed a reckless act under circumstances evincing depraved indifference to human life. Thus, Defendant's assertion that he was unaware of the depraved indifference element of the charge against him is contradicted by the record. Moreover, Mr. Feige's [*6]affirmation that he does not believe that he discussed the concept of depraved indifference with Defendant is far from an unequivocal statement.

Legal Discussion

CPL §440.10(2)(c) requires the Court to deny a motion to vacate a conviction, if, although sufficient facts appear on the record to have permitted appellate review, "no such appellate review or determination occurred owing to defendant's unjustifiable failure ...to take or perfect an appeal during the prescribed period ...." Absent any explanation for Defendant's failure to raise these issues on direct appeal, the court is obliged to deny his motion (People v. Cuadrado, supra). A CPL §440.10 motion may not be used to take a belated appeal on issues that appear on the face of the record (People v. Jackson, 266 AD2d 163 [1st Dept 1999]). Although a defendant may raise jurisdictional grounds pursuant to CPL §440.10(1)(a), "[a] motion on this ground, as on all other grounds in the statute, must be denied when the circumstances described in CPL §440.10(2)(c) exist." (Cuadrado, supra at 365). Since Defendant did not appeal from his conviction and since the alleged defect in the plea appeared on the record, collateral review of the sufficiency of the allocution is barred by CPL §440.10(2)(c) (People v. Acevedo, 104 AD3d 610 [1st Dept 2013]).

Although Defendant claims that his failure to appeal was justified because he was not advised of the right to appeal by counsel, the court's status sheet signed by Justice Safer-Espinosa, indicates that Defendant was given written notice of his right to appeal. Mr. Ferreira's affirmation that he does not recall whether he informed Defendant of the right to appeal does not refute the record. Thus, the Court finds Defendant's claim unavailing, given the presumption of regularity that attaches to judicial proceedings that may be overcome only by substantial evidence (see People v. Fishon, 47 AD3d 591 [1st Dept 2008]). "The presumption of regularity is particularly significant in guilty plea cases because plea situations are ordinarily marked by the absence of controverted issues, and in the plea situation the defendant tacitly indicates that no further judicial inquiry is required." (People v. Quinones, 2013 NY Slip Op 08011 [1st Dept 2013] People v. Hofler, 2 AD3d 176 [1st Dept 2003]).

Defendant's alternative argument, that only his jurisdictional argument could have been raised on direct appeal but his other plea related claims could not have been because he failed to preserve them or move to vacate the plea, is unpersuasive. Since the basis of Defendant's challenge to the sufficiency of the allocution is his belief that it negated an essential element of the charged crime casts doubt on his guilt and calls into question the voluntariness of his plea, such grounds would not necessarily require preservation (see People v. Lopez, 71 NY2d 662, 666-667 [1998]).

Were the Court not to find Defendant's claims barred on procedural grounds, they would be denied on the merits. Although Defendant relies on the similarities between the court's immigration warning in this case ("if there's any question regarding your legal status in this country this conviction could serve as the legal basis for an order of deportation or from the denial of lawful permanent residence or citizenship") and the warnings given to Diaz in Peque, supra at 178-179 ("if you're not here legally or if you have immigration issues these felony pleas could adversely affect you"), in the case at bar the court does warn of deportation and denial of citizenship. Also, in Peque, supra, defendant Diaz raised the claim on direct appeal and the [*7]Court of Appeals remitted to the trial court to allow him to make a motion to vacate the plea and demonstrate prejudice.

The judicial warning in this case should be viewed in light of the January 1998 time period it was administered.^[FN3] The history of United States Immigration Law, including the dramatic rise in recent years in deportation enforcement is chronicled in Peque, supra at 186-189. In this case, fourteen and a half years after defendant was sentenced and nine and a half years after his probation ended, Defendant received notice of his deportation. This appears to be related to the present enforcement policy.

Moreover, Defendant has not demonstrated prejudice. At the time of his plea he had been in the United States for less than a year and there was no record made of familial ties in this country. However, in light of such factors as his age, lack of criminal history, and that he worked two jobs, the parties agreed that the best disposition for Defendant would be probation and a residential long term psychiatric program. It is hard to imagine that, under the circumstances of this case, there is a reasonable probability that Defendant would not have pled guilty and would have gone to trial and risked incarceration had the trial court informed him more specifically of the deportation consequences.

Defendant's argument that the SCI was jurisdictionally defective because it alleged that he attempted to light a liquid under the door of an apartment but did not specify whether the liquid was flammable is also without merit. Whether the liquid was flammable or not is an evidentiary issue that could have been litigated at trial.

The Court finds Defendant's claim that the judgement should be vacated on the grounds of ineffective assistance of counsel because his counsel failed to explain the element of depraved indifference baseless. Defendant and his attorney both signed the SCI on two separate pages. By signing the SCI, Defendant stated that he read the SCI, which charged him with Reckless Endangerment in the First Degree "under circumstances evincing a depraved indifference to human life, did recklessly engage in conduct which created a grave risk of death to another person by pour[ing] a liquid under [the] apartment door of Roberto Rolon while seven (7) people were inside and did attempt to light liquid on fire." In his affirmation, Mr. Feige's equivocal statement that he "does not believe that I discussed with the defendant the concept of depraved indifference to human life" fails to overcome the presumption of regularity that attaches to judicial proceedings (see Fishon, supra). Based on the favorable plea as outlined above and the record of defense counsel's logistical efforts to coordinate a residential program for Defendant, the motion to vacate on the ground of ineffective assistance of counsel is denied.

Accordingly, Defendant's motion is denied in its entirety without a hearing.

This constitutes the decision and order of the Court. [*8]

January 31, 2014______________________________Dominic R. Massaro, JSC