Supreme Court, Bronx County, November 2, 2017

The Kuba Law Firm, New York City (Patrick Crowley of counsel), for defendant.

Darcel D. Clark, District Attorney, Bronx (James J. Wen of counsel), for plaintiff.

By indictment No. 3752/12, the grand jury of Bronx County charged the defendant, acting in concert with codefendants David Yopigua and Manuel Gonzalez Cervantes, with attempted robbery in the first degree and related offenses. The indictment alleged that in the course of attempting to steal the complainant's wallet, the defendant and his codefendants struck the complainant with a belt buckle and a glass bottle. On February 25, 2015, before this court, the defendant pleaded guilty to attempted assault in the second degree as part of a plea agreement pursuant to which the defendant was to be sentenced to three years' probation. After the defendant's plea, but before his sentencing, the defendant was interviewed by the New York City Department of Probation (Probation) in the preparation of the Presentence Investigation Report. During that interview, the defendant acknowledged that he had been born in Mexico, and had entered the United States illegally in 2008. On March 31, 2015, this court imposed the agreed-upon sentence. A Spanish interpreter was used for both the defendant's plea and sentencing. The defendant has not appealed the judgment of conviction.

In October of 2015, the United States Department of Homeland Security, Immigration and Customs Enforcement Unit (ICE), commenced removal proceedings against the defendant pursuant to Immigration and Nationality Act § 212 (a) (6) (A) (i) (8 USC § 1182 [a] [6] [A] [i]), because he is "[a]n alien present in the United States without being admitted or paroled, or who arrive[d] in the United States at any time or place other than as designated by the Attorney General," and section 212 (a) (2) (A) (i) (I) (8 USC § 1182 [a] [2] [A] [i] [I]), because he is "an[ ] alien convicted of, or who admits having committed, . . . a crime involving moral turpitude . . . ." (See People's exhibit 3.)

The defendant now moves, through counsel, pursuant to CPL 440.10 to vacate the judgment of conviction on the ground that he received ineffective assistance of counsel. Specifically, the{**58 Misc 3d at 269} defendant alleges that his "attorneys," one of whom he names as "Jenny," falsely advised him that he "should not be afraid if the judge mentions that I could be deported, but that would not be my case as long as I followed the rules of my probationary period and I didn't get into any more trouble" and that they had "been able to help other clients by using this method and no one has been deported." At the plea proceedings, Jenny Semmel and Sarah Lustbader, of The Bronx Defenders, appeared on behalf of the defendant; only Ms. Semmel was present at the defendant's sentencing.

When a defendant raises the issue of ineffective assistance of counsel, the court must first "determine on [the] written submissions whether the motion can be decided without a hearing," and the defendant is required to show that the facts he seeks to establish are "material and would entitle him to relief." (People v Satterfield, 66 NY2d 796, 799 [1985], citing CPL 440.30 [1], [4] [a].) Under New York law, to prevail on a claim of ineffective assistance, a defendant must demonstrate that his attorney failed to provide meaningful representation. (People v Benevento, 91 NY2d 708, 713 [1998].) "In the context of a guilty plea, a defendant has been afforded 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], overruled on other grounds People v Peque, 22 NY3d 168 [2013].) Under federal law, a defendant must show, first, "that counsel's representation fell below an objective standard of reasonableness," and, second, that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland v Washington, 466 US 668, 688, 694 [1984].) While in New York the Strickland prejudice prong is not "applied . . . with . . . stringency," it is "a significant but not indispensible element in assessing meaningful representation." (People v Stultz, 2 NY3d 277, 283-284 [2004].)

[1] A court may summarily deny a motion to set aside a judgment pursuant to CPL 440.10 if "[t]he motion is based upon the existence or occurrence of facts and the moving papers do not contain sworn allegations substantiating or tending to substantiate all the essential facts . . . ." (CPL 440.30 [4] [b].) In this case, the defendant has failed to include a corroborating affidavit from either of his former attorneys—one of whom, Ms. Semmel, is currently a supervising attorney at The Bronx{**58 Misc 3d at 270} Defenders—or from anyone else who might have knowledge of the circumstances of the plea, nor has he provided an explanation for his failure to do so. "The failure to include an affirmation from counsel, or an explanation for the failure to do so, has been held to warrant the summary denial of a defendant's postconviction motion." (People v Wright, 27 NY3d 516, 522 [2016] [citations omitted]; see People v Morales, 58 NY2d 1008, 1009 [1983]; People v Gil, 285 AD2d 7, 11-12 [1st Dept 2001].) Accordingly, the defendant's conclusory, self-serving allegations are insufficient to warrant a hearing (see People v Ozuna, 7 NY3d 913, 915 [2006]), and the defendant's ineffective assistance of counsel claim is denied pursuant to CPL 440.30 (4) (b). (See Wright, 27 NY3d at 520-521.)

[2] A court may also summarily deny a motion to set aside a judgment pursuant to CPL 440.10 if "[a]n allegation of fact essential to support the motion (i) . . . is made solely by the defendant and is unsupported by any other affidavit or evidence, and (ii) under these and all the other circumstances attending the case, there is no reasonable possibility that such allegation is true." (CPL 440.30 [4] [d].) Here, not only are allegations of essential facts made only by the defendant, but it is clear from the record before the court and from the defendant's own affidavit that there is no reasonable possibility that the defendant can establish that he did not receive meaningful representation or that his attorneys' performance fell below an objective standard of reasonableness. Nor can he establish that he suffered any prejudice as a result of his attorneys' alleged error.

During the plea proceedings, the following colloquy took place between the court and the defendant:

"THE COURT: Have you discussed with your attorney the immigration consequences of your plea?

"THE DEFENDANT: Yes.

"THE COURT: Do you understand, and I'm telling you that as a result of this plea, that you may very well be deported and suffer other immigration consequences? Do you understand that?

"THE DEFENDANT: Yes."

That any attorney would advise his or her client to ignore what the court was going to tell the client about the immigration consequences of his plea is unlikely. And, in this case, that one of his attorneys assured him that he would not be deported if he "didn't get into any more trouble" seems even more improbable, since his attorneys work for a legal services organization with immigration attorneys on staff.

{**58 Misc 3d at 271}[3] Even assuming that he was so advised, the defendant's claim still fails. In order to obtain relief, the defendant "must convince the court that a decision to reject the plea bargain would have been rational." (Padilla v Kentucky, 559 US 356, 372 [2010]; see People v Soodoo, 109 AD3d 1014, 1016 [2d Dept 2013].) Without a doubt, the defendant's attorneys negotiated a highly favorable plea deal. The top counts in the indictment, attempted robbery in the first degree and attempted gang assault in the first degree, both class C violent felony offenses, carried with them a minimum sentence of imprisonment of 31/2 years, and a potential maximum sentence of 15 years. (Penal Law §§ 110.00, 160.15 [3]; 110.00, 120.07, 70.02 [1] [b]; [3] [b].) Instead, after the defendant rejected several offers with longer probationary periods, he was permitted to plead guilty to attempted assault in the second degree, a nonviolent offense, and he thus avoided prison altogether. In light of the violent nature of the crime with which the defendant was charged—the Criminal Court complaint alleges that the defendant struck the complainant in the head with a belt buckle while other codefendants struck him in the head with a glass bottle and pushed him to the ground; the seriousness of the complainant's injuries—bruising, swelling, lacerations and 10 stitches to his head; and the strength of the People's case—police officers arrived on the scene after being flagged down by several eyewitnesses and observed the defendant with the belt wrapped around his arm converging on the complainant who was lying on the ground, the plea deal was remarkably advantageous.

Still, the defendant's likelihood of conviction at trial is not dispositive of the issue. A defendant can establish rejecting a plea would have been rational by demonstrating "deportation [*2]was the determinative issue" in his decision whether to accept a plea deal. (Lee v United States, 582 US —, —, 137 S Ct 1958, 1967 [2017] [internal quotation marks and citation omitted].)

"[A]n evaluation of whether an individual in the defendant's position could rationally reject a plea offer and proceed to trial must take into account the particular circumstances informing the defendant's desire to remain in the United States . . . weighed along with other relevant factors, such as the strength of the People's evidence, the potential sentence, and the effect of prior convictions." (People v Picca, 97 AD3d 170, 183-184 [2d Dept 2012].)

In Lee, the defendant, a lawful permanent resident, had lived in the United States for about 35 years, had established two{**58 Misc 3d at 272} businesses in Tennessee, was the only family member in the United States able to care for his elderly parents (both naturalized citizens), had no connections to South Korea, the country of his birth, and had not returned there since he left as a child. (Lee, 582 US at —, —, 137 S Ct at 1962-1963, 1967-1969.) The defendant repeatedly asked his attorney whether deportation was a risk, both the defendant and his attorney testified at a hearing that he would have gone to trial had he known about the deportation consequences of pleading guilty, and during the defendant's plea colloquy the court asked him if being deported would affect his decision to plead guilty and the defendant responded, "Yes, Your Honor."^[FN*] (582 US at —, 137 S Ct at 1967-1968.) The Supreme Court held that under those circumstances, the defendant rejecting the plea would not have been irrational, where to accept the plea would "certainly lead to deportation," but going to trial, despite exposure to more prison time, would only "[a]lmost certainly" lead to deportation. (582 US at —, 137 S Ct at 1968-1969.)

Likewise, in Picca, the Second Department found that a decision by the defendant to go to trial would have been rational given that he

"left [Italy] when he was three years old, and has never returned[,] . . . [and was] now 50 years old, is a lawful permanent resident of the United States, . . . has resided in this country for over three decades . . . [and] has been employed only in the United States. His entire family, including his wife, an American citizen to whom he has been married for more than 20 years, his three sons, also American citizens, his parents, and his siblings all reside in the United States." (Picca, 97 AD3d at 184.)

The circumstances here are in stark contrast to Lee and Picca. Not once in his affidavit does the defendant state that at the time of the instant plea, the immigration consequences were a significant factor in his decision whether to plead guilty, or that had he known he would be deported he would have rejected the plea deal. Rather, it appears from his affidavit that the defendant's primary concerns were avoiding going to prison and limiting the number of years he would be on probation.{**58 Misc 3d at 273} Indeed, at the time of the plea, the defendant said so himself. The court specifically asked the defendant: "Am I correct, even if you are deported, whatever the immigration consequences may be, that this is the plea that you want given, the promised sentences I'm telling you about?" Without equivocation, the defendant responded, "Yes."

Moreover, based on the information before this court, it appears the defendant has minimal ties to the United States. According to the Presentence Investigation Report, the defendant, who was almost 25 years old at the time of his plea, admittedly entered the United States illegally only four years before the instant offense, and at no time after entry obtained any type of legal status. In his affidavit, the defendant's current attorney acknowledges that the defendant "is currently without immigration status." Further, the defendant admitted to Probation that his only employment in the United States had been "off the books," and that his most recent residence was a rented room in a private house he had lived at for only four months. According to the defendant, at the time of his arrest he had one sister, also undocumented, residing in the United States, and his father and three other siblings, whom he remained in contact with, still lived in Mexico. The only reason he provided for wishing to remain in the United States was to support a three-year-old daughter, whose mother he claimed was unemployed. Nothing in either the defendant's or his attorney's affidavits casts doubt on the personal information contained in the Presentence Investigation Report.

Notably, because of the defendant's lack of immigration status, even an outright acquittal on all charges would not have insulated him from deportation. Unlike the defendants in Lee and Picca, both lawful permanent residents for whom the only basis of removal was their criminal convictions, here, as the letter from Wendy Leifer, Assistant Chief Counsel at ICE, makes clear, independent of the instant conviction the defendant is removable pursuant to section 221 (a) (6) (A) (i) (8 USC § 1182 [a] [6] [A] [i]), since he entered the United States illegally. (See People's exhibits 3, 4.)

From all this, it does not appear that deportation was the determinative issue, or even a significant consideration, in his decision to accept the plea deal. While caring for a child can certainly be a legitimate incentive to want to remain in the country, the totality of the circumstances before this court are not among "the unusual circumstances" that "[s]urmount[ ] {**58 Misc 3d at 274}Strickland's high bar" and simply do not establish that the decision not to plead guilty would have been rational. (See Lee, 582 US at —, 137 S Ct at 1967 [internal quotation marks and citations omitted]; Picca, 97 AD3d at 184 ["If, for example, an alien has significant ties to his or her country of origin, or has only resided in the United States for a relatively brief period of time, or has no family here, a decision to proceed to trial in lieu of a favorable plea agreement may be irrational in the face of overwhelming evidence of guilt and a potentially lengthy prison sentence"].)

Since an "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 no reasonable possibility" that the defendant's allegation of ineffective assistance of counsel is true, the defendant's CPL 440.10 motion is additionally summarily denied pursuant to CPL 440.30 (4) (d). (See People v Garcia, 154 AD3d 626 [1st Dept 2017].)