Supreme Court, Bronx County, December 7, 2018

Steven Dilone, defendant pro se.

Darcel D. Clark, District Attorney (Beth Kublin of counsel), for plaintiff.

Defendant Steven Dilone has moved pro se to vacate the judgment of conviction pursuant to CPL 440.10 (1) (h). For the reasons that follow, a hearing is ordered.

The First Case

The People alleged in the felony complaint that on May 22, 2013, at approximately 4:45 p.m., at the corner of Kingsbridge Road and Jerome Avenue in Bronx County, defendant sold crack cocaine to an undercover police officer. On November 26, 2013, defendant waived prosecution by indictment and pleaded guilty under SCI No. 3441-2013 to one count of criminal sale of a controlled substance in the third degree (Penal Law § 220.39 [plea minutes of Nov. 26, 2013 at 3, 4, 5, 6, 8, 10, 12, 14] [exhibit A]). If defendant fully and truthfully cooperated with the Department of Probation, did not commit any new crimes between the date of the plea and the date of sentence and appeared for sentence, defendant was promised a sentence of five{**62 Misc 3d at 832} years' probation and a youthful offender adjudication (id. at 3). The case was adjourned to January 2, 2014, for sentence (id. at 15) and was adjourned several times thereafter.

On March 26, 2014, defendant was arrested and charged with criminal sale of marijuana in the fourth degree (sentence minutes of June 13, 2014 at 3 [exhibit B]). He pleaded guilty to that misdemeanor on June 13, 2014, and was immediately sentenced, as a youthful offender, to 45 days' jail to run concurrently with the sentence on the felony drug sale (id. at 3, 5, 6, 8). The court declined to adjudicate defendant a youthful offender on that felony, sentencing him to one year (id. at 3, 4, 8). During these proceedings, defense counsel told the court that defendant "tells me he is a U.S. citizen[ ]" (id. at 5).

The Instant Case

The People alleged in the felony complaint that on November 10, 2014, at approximately 8:26 a.m., in front of 18 East 198th Street in Bronx County, defendant shot Nelson Rivera in the foot with a pistol while a small child stood less than four feet from Rivera. On December 19, 2014, defendant was charged in indictment No. 3720-2014 with attempted assault in the first degree (Penal Law §§ 110, 120.10 [1]), assault in the second degree (Penal Law § 120.05 [2]), two counts of criminal possession of a weapon in the second degree (Penal Law § 265.03 [1] [b]; [3]), criminal possession of a weapon in the third and fourth degrees (Penal Law §§ 265.02 [1]; 265.01 [1]) and criminal possession of a firearm (Penal Law § 265.01-b [1]). On April 19, 2016, defendant pleaded guilty to one count of assault in the second degree (Penal Law § 120.05 [4]) in full satisfaction of these charges.^[FN1] Defendant was also arraigned as a predicate felon based on his conviction for criminal sale of a controlled substance in the third degree (Penal Law § 220.39 [1]) in the {**62 Misc 3d at 833}first case. In exchange for this plea, the promised sentence was a determinate prison term of three years, followed by five years' postrelease supervision, to run concurrently with a sentence of one year imposed following defendant's plea of guilty on January 27, 2016, to criminal possession of a controlled substance in the fourth degree (Penal Law § 220.09 [6]) under SCI No. 68-2016 (the "third case").^[FN2] On May 9, 2016, this court imposed the promised sentence.

The Immigration Proceedings

The People state that

"[a]ccording to documentation provided by the U.S. Department of Homeland Security, defendant is a native of the Dominican Republic and a citizen of the Dominican Republic. He was admitted to the United States at New York, New York on or about December 4, 2006 as a lawful permanent resident. He was served a Notice to Appear on March 1, 2017, which charged him subject to removal from the United States on the basis of his conviction under Superior Court Information Number 68/2016 for Criminal Possession of a Controlled Substance in the Fourth Degree (Penal Law § 220.09[6]), an aggravated felony offense, as well as his conviction in the present case, a controlled substance [*3]offense [sic].^[FN3]

"On November 6, 2017, the Immigration Judge in defendant's removal proceedings found that removability was established by clear, convincing, and unequivocal evidence. Defendant was, however, found eligible to file for Witholding of Removal and Deferral of Removal—Convention Against Torture. Defendant was given the application documents with a filing deadline of January 5, 2018, and he was told that a failure to file could result in an order of removal without further notice or proceedings. Defendant failed to file the documents. On January 5, 2018, defendant was ordered removed from the United States. Defendant was given an appeal date of February 5, 2018 . . .{**62 Misc 3d at 834}

"On April 10, 2018, the Board of Immigration Appeals issued a letter stating that defendant's appeal had been withdrawn . . .

"According to a representative from the ERO New York Field Office of United States Immigration and Customs Enforcement, defendant was removed to the Dominican Republic on May 1, 2018." (People's aff in opp at 5-6.)

Defendant argues that he was "denied effective assistance of counsel" when his attorney "failed to properly advise him of the 'Immigration Consequences' that would result from his guilty plea" (defendant's aff ¶ 1). He claims that his attorney told him that he "would not have immigration problems" yet he is now subject to mandatory deportation (defendant's statement of facts ¶ 7). Defendant claims that had he known that he would "certainly" be deported, he would not have pleaded guilty and instead would have gone to trial or tried to negotiate a plea that would not have resulted in deportation (id. ¶ 13).^[FN4]

The People oppose this motion, arguing that it is procedurally barred and meritless (People's [*4]mem of law at 3). First, the People urge this court to deny the motion as moot, because defendant has already been involuntarily deported. Alternatively, the People argue that defendant's motion should be denied on the merits, because his allegations are not supported by an affirmation from counsel or any other corroborating evidence and there is no reasonable possibility that his claims are true. Finally, the People argue that defendant is "unable to demonstrate {**62 Misc 3d at 835}that he received less than meaningful representation from prior counsel" or that "he was prejudiced by any alleged misadvice regarding immigration consequences" (People's mem of law at 8-9).

In People v Buitago (53 Misc 3d 556, 558 [Sup Ct, Queens County 2016, Melendez, J.]), the court, relying on People v Harrison (27 NY3d 281 [2016]), held that since there is no fundamental right to have a decision on a permissive appeal, such as an appeal from a trial court's order denying a CPL 440.10 motion, the trial court "may choose not to entertain a CPL 440.10 motion where the defendant has been involuntarily deported." However, in determining that intermediate appellate courts must decide appeals filed as a matter of right even where the defendant has been deported, the Court of Appeals stated:

"We do not discount the People's arguments about the practical difficulties that may arise if a judgment is reversed on appeal and the defendant's further legal participation is required, for example to enter a guilty plea or to stand trial, but the defendant is unable to return to the country. Resolution of those issues must be left to the trial court and the parties, and will depend upon the unique circumstances of each case, as well as the immigration status of each defendant." (People v Harrison, 27 NY3d at 287; see also People v Bennett, 139 AD3d 1350 [4th Dept 2016] [lower court erred in summarily denying CPL 440.10 motion to vacate judgment of conviction where defendant alleged he was misadvised regarding immigration consequences of plea; Appellate Division declined to exercise discretion to dismiss permissive appeal because defendant had been deported and remitted for hearing]; People v Hemans, 132 AD3d 428 [1st Dept 2015] [to the same effect].)

[1] The People's claim that defendant may no longer be interested in taking further steps to remain in this country, because he apparently withdrew the appeal of his deportation order and failed to provide the Office of the District Attorney with updated contact information, fails. This court will not speculate as to the reasons why defendant did not pursue an{**62 Misc 3d at 836} appeal of his deportation order. The question presented here is not whether defendant wants to remain in or return to this country, but whether he was deprived of the effective assistance of counsel during the proceedings before this court. (Cf. People v Gaston, 163 AD3d 442, 446 [1st Dept 2018] [for purposes of considering prejudice prong of defendant's claim at CPL 440 hearing on remand, "it is of no moment that when taken into custody by immigration authorities, defendant chose to fight deportation and spent over a year in immigration detention . . . . The appropriate inquiry on the issue of prejudice is limited to the defendant's circumstances as they were at the time of entry of the guilty plea"].)

Moreover, the error in the uniform sentence and commitment may have contributed to defendant's deportation. The U.S. Department of Homeland Security (DHS) paperwork underlying defendant's deportation understandably but mistakenly lists the offense of conviction [*5]as intentional assault in the second degree under Penal Law § 120.05 (2), which DHS identified as an aggravated felony under 18 USC § 16. An aggravated felony includes a crime of violence as defined in 18 USC § 16 (Sessions v Dimaya, 584 US &mdash, &mdash, 138 S Ct 1204, 1211 [2018]). "[R]emoval [from the United States] is a virtual certainty for an alien found to have an aggravated felony conviction, no matter how long he has previously resided here" (id.). While 18 USC § 16 (a) appears to require an intentional use of physical force (see Sessions v Dimaya), defendant was actually convicted of reckless assault in the second degree under Penal Law § 120.05 (4), which may not qualify as an aggravated felony under 18 USC § 16 (a). Indeed, in Grant v United States (2017 WL 2881132, *2, *5, 2017 US Dist LEXIS 103868, *3-5, *7-11 [ED NY 2017]), the court held that reckless assault under Penal Law § 120.05 (4) did not qualify as a "crime of violence" as that term is defined in the Armed Career Criminal Act (ACCA)^[FN5] because the definition did not meet the Supreme Court's definition of "physical force" as articulated in Johnson v United States (559 US 133, 140 [2010] [defining physical force under the ACCA as "violent force—that is, force {**62 Misc 3d at 837}capable of causing physical pain or injury to another person"]). Moreover, in Garcia v Gonzales (455 F3d 465, 468 [4th Cir 2006]), the court vacated the order of the Board of Immigration Appeals holding that Garcia was eligible for deportation because he had been convicted in New York of reckless assault. The court held that because Penal Law § 120.05 (4) did not contain an element requiring the intentional employment of physical force against a person or thing, it was beyond the scope of 18 USC § 16 (a) and thus did not qualify as a crime of violence. That court also held that Penal Law § 120.05 (4) was not a crime of violence under 18 USC § 16 (b) (see id. at 468-469). In any event, even if a conviction for Penal Law § 120.05 (4) might have qualified as a crime of violence under 18 USC § 16 (b), the Supreme Court declared that section impermissibly vague under the Due Process Clause of the US Constitution in Sessions v Dimaya (584 US at —, 138 S Ct at 1223).

Furthermore, although defendant was convicted in the first case of a felony drug sale, which is an aggravated felony (see Pascual v Holder, 723 F3d 156, 157 [2d Cir 2013] ["a conviction under New York Penal Law . . . § 220.39(1) constitutes, categorically, an aggravated felony conviction under the Immigration and Nationality Act . . . 8 U.S.C. § 1101(a)(43)(B)"]), DHS did not list that conviction in the deportation paperwork (see People's exhibit 1 at 3).

Accordingly, the court will decide the instant motion on the merits.

"Under the State and Federal Constitutions, a defendant has the right to the effective assistance of counsel (see US Const 6th Amend; NY Const, art I, § 6; People v Baldi, 54 NY2d 137, 146 [1981]). Under the Federal Constitution, defense counsel is ineffective when his or her performance 'f[a]ll[s] below an objective standard of reasonableness' under 'prevailing professional norms' (Strickland v Washington, 466 US 668, 687-688 [1984]). Even if counsel's performance is deficient, however, the defendant's conviction will not be reversed unless 'there is a reasonable probability that, [*6]but for counsel's unprofessional errors, the result of the proceeding would have been different' (id. at 694-695). In the plea context, the defendant 'must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty{**62 Misc 3d at 838} and would have insisted on going to trial' (Hill v Lockhart, 474 US 52, 59 [1985]; see Roe v Flores-Ortega, 528 US 470, 478 [2000]). . . .

"In Padilla v Kentucky (559 US 356, 363-371 [2010]), the United States Supreme Court applied the Strickland framework to a defense attorney's advice, or lack thereof, regarding the immigration consequences of a guilty plea . . .

"The Court further stated that . . . 'to obtain relief on this type of claim, a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances' (Padilla, 559 US at 372)." (People v Hernandez, 22 NY3d 972, 974-976 [2013]; see also People v Mebuin, 158 AD3d 121, 129 [1st Dept 2017] ["Since deportation is a serious consequence, 'the equivalent of banishment or exile,' we have recognized that a noncitizen defendant may be willing to forgo an otherwise 'very beneficial deal' if it carries the consequence of deportation . . . Even where the maximum penalty at trial is significantly greater than the penalty offered on the plea, a noncitizen may be able to establish prejudice" (citations omitted)]; People v Picca, 97 AD3d 170, 184-185 [2d Dept 2012] [noncitizen "defendant's averments sufficiently alleged that a decision to reject the plea offer, and take a chance, however slim, of being acquitted after trial, would have been rational . . . In applying (the Padilla) standard, we do not determine whether a decision to reject a plea of guilty was the best choice, but only whether it is a rational one"].)

[2] Defendant claims that

"at no time, before, during or after any discussions that I had with former counsel was I made aware that I would be subject to an 'mondatory [sic] deportation' under the federal Immigration Laws, and that I would essentially have no chance of avoiding deportation if I accepted the offer, prior to taking the plea offer." (Defendant's statement of facts ¶ 9.)

This court's own notes indicate that at the time of defendant's plea the parties made the court aware that there were immigration concerns. Moreover, defense counsel stated on the record that a plea to reckless assault in the second degree, as{**62 Misc 3d at 839} opposed to intentional assault in the second degree, was "certainly in [defendant's] interest" (exhibit C at 4). Accordingly, defendant's claim that he was not told that he would be subject to mandatory deportation finds some support in the record. Under all of the circumstances, defendant's failure to provide an affidavit from his attorney does not mandate summary denial of his motion. (People v Mebuin, 158 AD3d at 127 ["where, as here, defendant's application is adverse and hostile to his trial attorney, 'requir(ing) the defendant to secure an affidavit, or explain his failure to do so, is wasteful and unnecessary' " (citations omitted)].) The People's claims to the contrary (People's aff in opp at 5) are unpersuasive.

Given the complexity of the immigration issues presented here, the erroneous information in the uniform sentence and commitment, and indications in the record that immigration consequences were important to defendant's decision to plead guilty, this court is constrained to order a hearing so that these issues may be properly addressed. (Cf. People v Hungria, 161 AD3d 1007 [2d Dept 2018] [Supreme Court erred in not conducting a hearing, where defendant [*7]sufficiently alleged that defense counsel failed to advise him that guilty plea exposed him to mandatory deportation, and had he been so advised the decision to reject the plea offer would have been rational]; People v Hemans.) At the hearing, defendant will have the burden of proving by a preponderance of the evidence every fact essential to support his motion (CPL 440.30 [6]; see People v Corporan, 151 AD3d 627, 627 [1st Dept 2017] [defendant who had been deported, and who testified by video conferencing, failed to meet his burden of demonstrating a "reasonable probability" that he would not have pleaded guilty had he been made aware of deportation consequences], lv denied 30 NY3d 979, 983 [2017]).

This court will appoint 18-B counsel to represent defendant for the purposes of the motion and hearing (County Law § 722 [4]). All parties are directed to appear at Bronx County Supreme Court Part T 24 located in room 440, on December 20, 2018, at 9:30 a.m., for counsel to be appointed and for scheduling purposes.

"THE COURT: The law requires me to tell you that if you are not a citizen of the United Stated this plea of guilty can result in your being deported or being excluded from admission to the United States or being denied naturalization as a citizen; do you understand that?

"THE DEFENDANT: Yes." (Exhibit 1 at 14.)

The court then stated,

"THE COURT: Mr. Hurson, did you discuss with the defendant any potential negative immigration consequences?

"MR HURSON: Yes.

"THE COURT: Mr. Dilone, do you still wish to plead guilty?

"THE DEFENDANT: Yes." (Id.)