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People v Beckford
2015 NY Slip Op 51112(U) [48 Misc 3d 1213(A)]
Decided on July 22, 2015
Criminal Court Of The City Of New York, Bronx County
Rosado, 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This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on July 22, 2015
Criminal Court of the City of New York, Bronx County


The People of the State of New York, Plaintiff,

against

Rowal Beckford, a/k/a WINSTON WILLIAMS, Defendant.




1999X042176



Appearances of Counsel



The People — Robert T. Johnson, District Attorney, Bronx County by Katherine A. Gregory, Assistant District Attorney



Defendant — Christian Lassiter


Mary V. Rosado, J.

By Notice of Motion dated January 13, 2015, Rowal Beckford (hereinafter "Defendant") moves for an order, pursuant to CPL § 440.10 (1) (h), to vacate a judgment of conviction on the ground that his plea was taken in violation of rights granted to him by the United States and New York Constitutions. By Affirmation in Opposition dated March 24, 2015, the People oppose. In rendering a decision, this court has reviewed Defendant's Motion to Vacate dated January 13, 2015, the People's Affirmation in Opposition dated March 24, 2015, the court file, and relevant statutes and case law.

Factual Background


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On July 17, 1999, Defendant was arrested and charged with Criminal Possession of Marijuana in the Fifth Degree (Penal Law § 221.10). The accusatory instrument alleged that Police Officer Paul Rosa recovered one bag, containing a material alleged to be marijuana, from Defendant's wallet. On July 18, 1999, Defendant appeared before Honorable Michael Sonberg, and pled guilty to the added charge of Unlawful Possession of Marijuana (Penal Law § 221.05). The court sentenced Defendant to pay a $ 25 fine. Defendant was represented by his attorney, Burt Grayman of the Legal Aid Society. There is no record that Defendant ever filed a Notice of Appeal.

Ineffective Assistance of Counsel under Federal Constitution


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The Sixth Amendment of the United States Constitution guarantees a criminal defendant the right to assistance of counsel. Not only is there a right to assistance of counsel, but it is also a right to effective assistance of counsel (Strickland v Washington, 466 US 668, 686 [1984], citing McMann v Richardson, 397 US 759 [1970] [internal citations omitted]). The standard to determine whether a defendant received ineffective assistance of counsel under the federal [*2]constitution is whether 1) the attorney's representation was deficient, and 2) if the attorney's deficient representation prejudiced the defendant (Id. at 687).

In Padilla v Kentucky (559 US 356 [2010]), the Supreme Court held that for purposes of guilty pleas, an attorney's failure to advise a non-citizen client that acceptance of a guilty plea may subject the defendant to deportation, is intrinsically deficient representation (Id. at 373). However, the Court did not impose the duty to advise of all potentially negative immigration consequences. Subsequently, retroactive application of Padilla was declined as it created a new rule of criminal procedure instead of identifying a permutation of Strickland (Chaidez v United States, 133 S.Ct 1103 [2013]). Padilla has no retroactive application to convictions that became final prior to its decision date.

The New York State Court of Appeals has unequivocally ruled that Padilla has no retroactivity to state post-conviction proceedings pursuant to CPL 440.10 (People v Baret, 23 NY3d 777, 799 [2014]). Defendant's conviction became final prior to the decision date of Padilla, March 10, 2010. Therefore, his motion to vacate on this ground must be denied in its entirety (See People v Mercado, 122 AD3d 401 [1st Dept 2014]; People v Reyes. 122 AD3d 461 [1st Dept 2014]; People v Quezada, 121 AD3d 465 [1st Dept 2014]).



There is no record that Defendant ever filed a Notice of Appeal to initiate appellate review of his guilty plea, nor does Defendant allege that he appealed his conviction. Defendant's time to file an appeal expired long before Padilla was decided. Defendant argues that Chaidez only should apply to cases where an attorney fails to provide warnings of possible deportation, but not to instances when an attorney actively provides incorrect advice about deportation (Defendant's Affirmation at p. 13). On the contrary, Chaidez only recognized that "at most a minority of courts recognized a separate rule for material misrepresentations, regardless of whether they concerned deportation or another collateral matter" (Chaidez at 1112). To the extent that lower federal courts had previously carved out a "separate rule for material misrepresentations", they did so without distinguishing whether the misrepresentation touched on a direct or collateral consequence of a plea. Furthermore, the language of Padilla itself undermines Defendant's argument. The Court found that there is no practical difference between acts of commission and acts of omission (Padilla at 370).



However, a defendant can still sustain a claim for ineffective assistance of counsel when an attorney misadvises about the deportation consequence of a guilty plea(People v Melo-Cordero, 123 AD3d 595 [1st Dept 2014]; People v Simpson, 120 AD3d 412 [1st Dept 2014]). A litany of criminal offenses qualifies a non-citizen for deportation. A person is guilty of Unlawful Possession of Marijuana when he "knowingly and unlawfully possesses marijuana" (Penal Law § 221.05). For purposes of deportability, "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 802 of Title 21), other than a single offense involving possession for one's own use of 30 grams or less of marijuana, is deportable" (8 USC § 1227 [a] [2] [B] [i]). A conviction is defined as "a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed" (emphasis added) (8 USC § 1101 [a] [48] [A]). By pleading guilty to Unlawful Possession of Marijuana on July 18, [*3]1999, Defendant became deportable. He pled guilty to Penal Law § 221.05, a controlled substance offense, and a judge ordered a penalty of $ 25. His plea was also not his first "conviction" of a controlled substance offense. Defendant previously pled guilty to Unlawful Possession of Marijuana in 1993 [FN1] .



Even if Defendant received incorrect legal advice regarding deportation, he must still show that but for his attorney's advice, the result of the case would have been different (Strickland at 669). For purposes of pleas, the defendant must show that in the absence of attorney advice, there is a reasonable probability that defendant would have proceeded to trial (Hill v Lockhart, 474 US 52, 59 [1985]; People v Hernandez, 22 NY3d 972, 975 [2013]). Defendant has not made a showing of the reasonable probability he would have proceeded to trial. His guilty plea avoided imprisonment, and it did not contribute to his criminal record. More specifically, the sentence consisted of merely a $ 25 fine. Defendant offers only his self-serving affirmations that he would have continued to trial and not accepted the plea offer. He has not satisfied his burden of showing prejudice by his attorney's alleged, incorrect advice because he benefitted from a negotiated plea that provided very beneficial terms.



It is also unclear from Defendant's submission how his guilty plea affects his ability to change his immigration status. While Defendant refers to a goal of becoming a naturalized United States citizen (Defendant's Affirmation at pp. 12, 16, 19; Exhibit B ¶¶ 17, 19), he cites 8 USC § 1182 (a) (2) (A) (i) (II) as the statutory authority that prevents his adjustment of status (Defendant's Affirmation at p. 4). Title 8 § 1182 of the United States Code identifies aliens who are ineligible for visas or admission into the United States. If Defendant is an alien seeking lawful admission into the United States, he would in fact be automatically ineligible by virtue of his second conviction of a controlled substance crime (See 8 USC § 1182 [a] [2] [A] [i] [II]). If Defendant seeks citizenship, 8 USC § 1427 controls his eligibility for naturalization. Defendant's guilty plea would not render him automatically ineligible for naturalization. Naturalization requires an applicant to make a showing of good moral character for at least three (3) years (8 USC § 1430) but up to five (5) years (8 USC § 1427) prior to application. Defendant's plea to his second controlled substance offense does not create a finding of lack of good moral character (See 8 USC § 1101 [f] [3]). A controlled substance conviction is only relevant to good moral character if the conviction occurred during the relevant statutory period prior to naturalization (8 CFR 316.10 [b] [2] [iii]). Since Defendant's plea to Unlawful Possession of Marijuana was entered sixteen (16) years ago, it would not factor into his good moral character for naturalization.

Defendant's allegations of misadvice about deportation, however, is not supported by the record. There is no affidavit from Mr. Grayman confirming incorrect advice. Additionally, he has not shown that he was prejudiced by the alleged deficient representation such that in the absence of which, he would have proceeded to trial. To the contrary, the alleged advice regarding deportation is not supported by any affidavit or evidence, besides Defendant's own affidavit, that creates a reasonable probability that the allegation is true. Moreover, the alleged advice concerning eventual naturalization was correct.

Ineffective Assistance of Counsel under New York Constitution


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The New York Constitution also entitles a criminal defendant to effective assistance of counsel (NY Const., Art. I § 6). A defendant has received effective assistance of counsel when [*4]"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]).

A defendant has received meaningful representation, in the context of a guilty plea, when he "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]; People v Caruso, 88 AD3d 809, 810 [2d Dept 2011]). Review of the court file confirms that Defendant received a favorable plea. He was originally charged with a misdemeanor count of Criminal Sale of Marijuana in the Fifth Degree (Complaint at p. 1). Defendant pled to Unlawful Possession of Marijuana in satisfaction of the entire docket (Defendant's Affirmation, Exhibit A Certificate of Disposition). Unlawful Possession of Marijuana is a violation and not a crime. A violation carries a fifteen day maximum term of imprisonment (See Penal Law § 70.15 [4]). The court sentenced Defendant to pay a $ 25 dollar fine (Defendant's Affirmation, Exhibit A). By pleading guilty, Defendant avoided potential conviction of a class B misdemeanor. Conviction on the Criminal Sale of Marijuana in the Fifth Degree charge could have subjected Defendant to three (3) months imprisonment (See Penal Law § 70.15 [2]). Defendant received a plea offer with beneficial terms. Furthermore, there is nothing in the record to suggest that Defendant did not receive effective assistance of counsel.

Court's Failure to Warn

A court has the responsibility to ensure that a defendant, pleading guilty to a criminal offense, does so voluntarily and intelligently (People v Catu, 4 NY3d 242, 245 [2005]). However, courts are not expected to inform a defendant of every negative outcome that may result from entering a guilty plea. A court has the duty to advise of a plea's direct consequences, but not any collateral consequences that may befall a particular defendant (People v Ford, 86 NY2d 397 [1995]). As set forth in People v Peque (22 NY3d 168 [2013]), the Court of Appeals has affirmatively required all trial courts to inform non-citizen defendants that pleading guilty to a felony may subject them to deportation. A court's failure to inform a defendant of potential deportation goes to the heart of the voluntariness of the plea (Id. at 198).

Peque has no retroactive applicability, and is not relevant to cases where final convictions predate the decision (People v Brazil, 123, AD3d 466 [1st Dept 2014]; People v Fermin, 123 AD3d 465 [1st Dept 2014]; People v Lovejoy, 44 Misc 3d 457 [2014]). Defendant entered his plea on July 18, 1999. His opportunity for direct appeal has expired, and his conviction is final.

Even if Peque retroactively applied to his case, the court was under no obligation to warn Defendant that his guilty plea may subject him to deportation. The alleged failure to warn Defendant of the risk of deportation did not affect the voluntariness of his plea, or his due process rights. Furthermore, there is no way to confirm what the court said during Defendant's plea allocution because no record of the proceeding can be located (See Defendant's Affirmation, Exhibit C Affidavit for Non-Transcription of Minutes). Peque requires deportation warnings only when a defendant is pleading guilty to a felony. According to the Certificate of Disposition, Defendant pled guilty to Unlawful Possession of Marijuana, a violation. Therefore, there would not have been any duty for the court or his attorney to warn of deportation.



Defendant's allegations of fact are based solely on his affidavit, and not supported by any other affidavit or evidence, and there is no reasonable probability that his allegations are true (See CPL § 440.30 [4] [d]). Alternatively, Defendant's motion does not contain sworn [*5]allegations that "substantiates or tends to substantiate all the essential facts" (CPL § 440.30 [4] [b]). This court has no alternative but to deny Defendant motion to vacate judgment in its entirety, and deny his request for a hearing.



This constitutes the Decision and Order of the court.



Dated: July 22, 2015



Bronx, New York



_______________________

Mary V. Rosado, J.C.C.

Footnotes


Footnote 1:People v Williams, Docket 1993X005226.