City Court of Hudson, November 7, 2019

Prisoners' Legal Services of New York (James P. Milstein of counsel) for defendant.

Paul Czajka, District Attorney (Joyce Crawford of counsel), for plaintiff.

Before the court is a motion by the defendant seeking an order vacating his 2002 misdemeanor guilty plea on the basis that it was entered into by him in violation of his rights under the United States Constitution and the New York State Constitution. Specifically, he argues that his attorney at the time of the guilty plea misinformed him of the immigration implications of pleading guilty to a misdemeanor in 2002. Defendant states that now, 17 years later and as a result of the 2002 guilty plea, he is subject to deportation by the United States Department of Homeland Security and if his guilty plea stands, he will be deported. Defendant asserts that such deportation would be cruel and unusual punishment, as prohibited by the United States and New York State Constitutions.

This criminal matter was commenced by the filing with this court of an accusatory instrument alleging that on August 6, 2002, the defendant committed the class A misdemeanor of Penal Law § 260.10 (1), endangering the welfare of a child, and the violation of Penal Law § 221.05, unlawful possession of marijuana. At the time of the arrest, the defendant was issued an appearance ticket for each of the charges.

The accusatory instrument alleged that the defendant possessed "a small plastic bag of marijuana" and alleged that he was "smoking a marijuana joint while holding a 5-month-old baby in his lap and a 3-year-old sitting next to him."

On August 20, 2002, the defendant was arraigned on the charges, entered pleas of not guilty to both charges, and was released on his own recognizance. According to the court's records, the Columbia County Public Defender's Office appeared on behalf of the defendant; however, there appears to be no record (or recollection by the defendant) as to which assistant public defender appeared on behalf of the defendant in 2002.{**66 Misc 3d at 191}

At the September 17, 2002 court appearance, the defendant pleaded guilty to endangering the welfare of a child, such plea covering the marijuana violation. The court fined the defendant $100 plus the mandatory state surcharge.

On or about April 13, 2019, the court received a notice of motion seeking an order vacating the defendant's plea pursuant to Criminal Procedure Law § 440.10 (1) (h), on the grounds that "the judgment was obtained in violation of a right of the defendant under the constitution of this state or of the United States." The motion was made returnable on May 2, 2019.

On May 2, 2019, counsel for the People and the defendant appeared, and at which time a briefing schedule was agreed upon. On May 16, 2019, the defendant submitted a memorandum of law in support of the motion. On June 2, 2019, the court received an affirmation in opposition to the motion from the People. On June 28, 2019, the court received reply affidavits from James P. Milstein, Esq., and Robert Linville, Esq., on behalf of the defendant.

On August 29, 2019, further argument was heard by the court on the motion, the parties were provided an opportunity to submit a supplemental memorandum of law, and the decision on the motion was reserved by the court.

On September 12, 2019, the court received a supplemental memorandum of law from defense counsel. On September 27, 2019, the court received a letter from the People stating that they did not intend to make any further submissions in the matter.

The defendant states that at the time of his arrest in 2002, he was 38 years old, was not a citizen, but had been living in the United States since he was six years old. The defendant further states that at the time he entered his plea of guilty to the A misdemeanor, he informed his attorney that he was not a United States citizen and asked his attorney if his ability to remain in the United States would be adversely affected by the proposed guilty plea, to which the defendant states that his attorney replied that the plea would not adversely affect his immigration status.^[FN1]

Defendant further states that on September 20, 2017, the United States Department of Homeland Security commenced a{**66 Misc 3d at 192} removal proceeding against him based upon the 2002 guilty plea to endangering the welfare of a child. The defendant also states that he is currently released on his own recognizance but is required to appear at the Immigration Court in Buffalo, New York.^[FN2]

Defendant asserts that at the time he entered his plea of guilty, he was not provided thorough and correct legal advice regarding the collateral consequences to his plea to the class A misdemeanor, in that it is considered a "crime against a child" under immigration law and [*3]therefore a deportable offense.^[FN3] Defendant also states that at the time of his guilty plea, the court did not make any inquiry as to the possibility of deportation as a result of the plea.^[FN4]

Defense counsel asserts that if the defendant is deported, he would be deported to a country where he has no family ties since all members of his surviving family are in the United States.^[FN5]

In support of his motion, the defendant argues that his guilty plea was obtained in violation of his rights under the United States Constitution or the New York State Constitution. Specifically, the defense argues that the failure of defense counsel to ascertain the defendant's specific immigration status and defense counsel's failure to correctly advise the defendant as to the immigration consequences of his guilty plea was a deficient performance^[FN6] and therefore in violation of his rights under the Sixth Amendment to the United States Constitution.

The defendant further argues that the consequence of deportation is "cruel and unusual punishment" and is severely disproportionate for a class A misdemeanor conviction and therefore in violation of the defendant's rights under the Eighth Amendment to the United States Constitution.^[FN7]

In opposition to the motion, the People assert that the defendant's motion must be denied for various reasons:

1. that the motion was not properly made under Criminal Procedure Law § 440.10;

{**66 Misc 3d at 193}2. that the defendant has not alleged facts that his plea was not "knowingly, voluntarily intelligent";

3. that a judgment of conviction is presumed valid and the defendant bears the burden of coming forward with sufficient allegations to create an issue of fact;

4. that this plea predates that landmark case of Padilla v Kentucky (559 US 356 [2010]), as interpreted in Chaidez v United States (568 US 342 [2013]), and therefore the defendant cannot benefit from the Padilla holding;

5. that the defendant failed to include an affidavit from his counsel at the time of taking his guilty plea, and that it appears that at the time of the defendant's guilty plea, his legal counsel gave him the best information available since at the time of the defendant pleading guilty, such plea would not have subjected the defendant to removal proceedings;

6. that the defendant's claim of ineffective counsel is without merit since the defendant failed to demonstrate that his attorney's representation "fell below an objective standard of [*4]reasonableness";^[FN8]

7. that under the New York standard, a defendant is not required to fully satisfy the prejudice test of Strickland^[FN9] but rather the only question is whether the attorney's conduct constituted egregious and prejudicial error such that defendant did not receive a fair trial (citing People v Benevento, 91 NY2d 708 [1998], and People v Caban, 5 NY3d 143 [2005]);

8. that in fact defendant's legal counsel did provide effective counsel at the time of the defendant entering his guilty plea, since the defendant received a sentence of only a fine and surcharge, while he could have been sentenced up to one year in jail; and

9. that 17 years have passed since the defendant entered his guilty plea and thus the People would be severely prejudiced if the plea was vacated and the People were required to be put to their proof.

Defendant asserts that by virtue of the fact that his legal counsel at the time of the defendant's guilty plea misadvised him as to the immigration consequences of his guilty plea, his attorney's performance failed to meet the standard set forth in{**66 Misc 3d at 194} Strickland:^[FN10] "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result."^[FN11] It appears to be undisputed that in 2002, defense counsel did not routinely advise defendants of immigration consequences of pleading guilty to a crime. So, the question before the court is, based upon the allegations and recollection of the defendant, whether the advice given to the defendant by his attorney prior to his entry of the guilty plea was so deficient that it meets the Strickland benchmark.

Strickland provides the court the proper standard for judging attorney performance as that of reasonably effective assistance, considering all the circumstances. "When a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness."^[FN12]

As to the sufficiency of defense counsel's performance at the time the defendant entered his plea of guilty, it is unfortunate that neither the defendant, the Public Defender's Office nor the court is able to ascertain which attorney appeared on behalf of the defendant at the time he entered his guilty plea. Exactly what was discussed or was not discussed between the defendant and his attorney may never be ascertained. However, the court agrees with the People that the defendant, as the moving party, has the burden to come forward with sufficient allegations in support of the motion. Here the defendant has failed to do so.

Furthermore, in light of the United States Supreme Court's holding in Chaidez^[FN13] that Padilla is not retroactive, and since defendant's guilty plea predates Padilla, the defendant [*5]cannot benefit from Padilla. In Chaidez, the United States Supreme Court applied the principles set out in Teague v Lane,^[FN14] which held that the Padilla holding was not retroactive since it neither "places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe" nor did Padilla create "watershed rules of {**66 Misc 3d at 195}criminal procedure." (Teague at 311.)^[FN15] See People v Pena,^[FN16] where the Second Department held, "[i]t is now settled that the Padilla decision does not apply retroactively in state court postconviction proceedings" citing People v Baret^[FN17] and People v Andrews.^[FN18]

With regard to the defendant's contention that the immigration consequences of his guilty plea constitute cruel and unusual punishment in violation of his rights under the United States Constitution and the New York State Constitution, this argument requires greater scrutiny.

The Eighth Amendment to the United States Constitution which applies to the states by virtue of the Fourteenth Amendment^[FN19] states that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

The New York State Constitution, article I, § 5 echoes the Eighth Amendment to the United States Constitution by stating, "Excessive bail shall not be required nor excessive fines imposed, nor shall cruel and unusual punishments be inflicted, nor shall witnesses be unreasonably detained."

The federal courts which have interpreted the Eighth Amendment have taken a narrow view as to what constitutes cruel and unusual punishment. In Ingraham v Wright (430 US 651, 667 [1977]) the United States Supreme Court stated that

"the Cruel and Unusual Punishments Clause circumscribes the criminal process in three ways: First, it limits the kinds of punishment that can be imposed on those convicted of crimes, e. g., Estelle{**66 Misc 3d at 196} v. Gamble^[FN20] . . . ; Trop v. Dulles^[FN21] . . . ; second, it proscribes punishment grossly disproportionate to the severity of the crime, e. g., Weems v. United States^[FN22] . . . ; and third, it imposes substantive limits on what can be made criminal and punished as such, e. g., Robinson v California^[FN23] . . . The primary purpose of [the Cruel and Unusual Punishments Clause] has always been considered, and properly so, to be directed at the method or kind of punishment imposed for the violation of criminal statutes" (internal quotation marks omitted, citing Powell v Texas.^[FN24]

The application of a defendant's Eighth Amendment protection from cruel and unusual punishment regarding deportation appears to be well settled. Federal courts have long held that immigration removal is not considered a punishment for constitutional purposes.^[FN25] The federal [*6]courts have based this upon the logic that "[t]he purpose of deportation is not to punish past transgressions but rather to put an end to a continuing violation of the immigration laws."^[FN26]

This court cannot concur in such logic when applying the protections of article I, § 5 of the New York State Constitution to immigration removal. It should be noted that in determining the scope and effect of the guarantees of fundamental rights of the individual under the New York Constitution, New York courts can exercise their independent judgment and are not bound by a decision of the Supreme Court of the United States{**66 Misc 3d at 197} limiting the scope of similar guarantees in the Constitution of the United States.^[FN27]

However, there is only a small body of New York case law applying the protections of article I, § 5 of the New York State Constitution, and there is a dearth of cases applying article I, § 5 protections to immigration removal.

Here, the defendant is facing a recent threat of deportation as a result of a 15-year-old plea of guilty to a misdemeanor. The combined elements of the severity of the punishment and the inordinate delay in the imposition of deportation create a de facto punishment which is cruel and unusual to the degree that it is unconstitutional under article I, § 5 of the New York State Constitution.

The court understands that at the time of the 2002 guilty plea the offense of endangering the welfare of a child was deemed "an offense against a child" and thus a crime of "moral turpitude" and a deportable offense under federal immigration law. The court further understands that at the time of the guilty plea, the enforcement policy of the United States government was not to bring deportation proceedings against individuals having defendant's status. It appears the federal government's discretion of not enforcing the immigration law lasted for approximately 15 years subsequent to the date of the defendant's guilty plea. Now, 15 years later, the defendant is facing delayed enforcement. The current policy of strict and delayed enforcement was unforeseeable 15 years ago.

The defendant alleges that he has been in the United States since the age of six and he has no surviving family members in the country of his birth. From the defendant's perspective, deportation is the equivalent of exile to a foreign land. Truly a serious consequence, "the equivalent of banishment or exile."^[FN28]

This delay, in conjunction with the de facto punishment of removal of the defendant from the United States (his home since the age of six) to a land foreign to him based upon a 15-[*7]year-old misdemeanor conviction, is so inherently cruel and unusual that it violates article I, § 5 of the New York State Constitution.

The court is hard pressed to envision another scenario where a de facto penal consequence to a guilty plea is delayed 15{**66 Misc 3d at 198} years after sentencing. The delayed immigration consequences to the defendant's guilty plea resulted in a "punishment grossly disproportionate to the severity of the crime" to which the defendant pleaded guilty.^[FN29]

As the United States Supreme Court said in Bridges v Wixon:^[FN30] "Though deportation is not technically a criminal proceeding, it visits a great hardship on the individual and deprives him of the right to stay and live and work in this land of freedom. That deportation is a penalty—at times a most serious one—cannot be doubted. Meticulous care must be exercised lest the procedure by which he is deprived of that liberty not meet the essential standards of fairness."

As to the People's argument that the instant motion was improper since it was not made under Criminal Procedure Law § 440.10, the court finds no basis for this contention. The notice of motion clearly states that the motion is being brought pursuant to Criminal Procedure Law § 440.10 (1) (h), that "the judgment was obtained in violation of a right of the defendant under the constitution of this state or of the United States." Therefore, the motion was properly noticed and brought before the court.

As to the People's argument that the defendant failed to allege that his plea was not knowing and voluntary, this argument is also faulty. The People state in their affirmation in opposition to the motion that, "[a]t the time, this plea and offense would not have subjected the defendant to removal proceedings, since it was not considered an aggravated felony offense or crime of moral turpitude (under 8 USCA § 1227)."^[FN31] The defendant argues to the contrary: that it was a deportable offense in 2002 since the guilty plea was a plea to a crime considered to be "an offense against a child" under immigration law. Potential deportation only imposed 15 years later was an unforeseeable consequence of the defendant's guilty plea in 2002. The court cannot consider the defendant's 2002 guilty plea to be "knowingly" if he did not and apparently could not have known that his plea would subject him to deportation 15 years later.

The People also make issue of the fact that the defendant failed to include an affidavit from his legal counsel who represented{**66 Misc 3d at 199} him at the time of his guilty plea, and argue this failure should be a basis for denying the defendant's motion. If the court adopted this argument, injustice would result. The court's record does not indicate who the defendant's counsel was at the time of his guilty plea and the affirmation of Robert Linville, Esq., former Columbia County Public Defender, affirms that his office does not have such records, and it would be unreasonable to expect the defendant to remember who his attorney was 17 years ago.

Having denied the defendant's motion on the basis of ineffectiveness of counsel, the other arguments of the People regarding the defendant arguing that his Sixth Amendment rights were violated are moot.

The People also argue that the People would be severely prejudiced if the plea was vacated and the People were required to put forth their proof after 17 years have [*8]passed since the guilty plea was taken. The court understands this, but the court must weigh the defendant's constitutional rights against the prejudice to the People in meeting their burden of proof, and the court finds the defendant's constitutional rights paramount.

In light of the foregoing, the court grants the defendant's motion to vacate his guilty plea on the grounds that consequence of deportation 17 years after entering a guilty plea to a class A misdemeanor is, de facto, cruel and unusual punishment and thus violative of the defendant's rights under the Eighth Amendment to the United States Constitution as well as in violation of the defendant's rights under article I, § 5 of the New York State Constitution. The parties are directed to appear in court on November 14, 2019, for further proceedings including the entry of the defendant's plea to the two counts.

"[A] new rule should be applied retroactively if it places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe[.] . . . The second exception suggested by Justice Harlan—that a new rule should be applied retroactively if it requires the observance of those procedures that . . . are implicit in the concept of ordered liberty—we apply with a modification. The language used by Justice Harlan in Mackey leaves no doubt that he meant the second exception to be reserved for watershed rules of criminal procedure" (Teague v Lane at 311 [internal quotation marks and citation omitted]).