Cite as: The People v. Alicia Wilson, 2000KN052140, NYLJ 1202575819208, at *1 (Crim., KI, Decided October 18, 2012)

Justice John H. Wilson

Decided: October 18, 2012

ATTORNEYS

For the People: Charles J. Hynes, District Attorney, Kings County, by Michael Brenner, Esq., Assistant District Attorney.

For the Defendant: Figeroux and Associates, by Perline Guillaume, Esq.

 

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By motion dated March 15, 2012, Defendant moves pursuant to CPL Sec. 440.10(1)(h) to vacate her conviction on the grounds that her plea was involuntary since she received the ineffective assistance of counsel. Defendant asserts that her attorney never advised her of the immigration consequences of her guilty plea in this matter.

The Court has reviewed the Court file, Defendant's Motion and Memorandum of Law, as well as all exhibits attached thereto, including the Affidavit of Defendant, sworn to on March 15, 2012, and the minutes of the plea and sentence dated June 22, 2000. The Court has also reviewed the People's Response dated October 5, 2012.

For the following reasons, Defendant's Motion is hereby denied.

 

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STATEMENT OF FACTS

On June 21, 2000, Defendant was charged with Criminal Possession of Marijuana in the Fourth Degree (PL Sec. 221.10), a Class B misdemeanor, and a related charge. The next day, Defendant entered a plea of guilty to the above-stated charge and received a sentence of one year of probation. A surcharge in the amount of $120.00 was also imposed.

To date, Defendant has not appealed her conviction in this matter.

LEGAL ANALYSIS

Before addressing the merits of Defendant's Motion, this Court finds that a formal hearing in this matter is unnecessary. This Court has reviewed the record of the underlying proceedings, as well as the statements of the relevant parties. As such, this Court may be "presumed to be 'fully familiar with all aspects of the case.'" See, People v. Demetsenare, 14 AD3d 792, 793 (3d Dept., 2005) citing People v. Loomis, 256 AD2d 808, 808-809 (3d Dept., 1998), lv. den. 93 NY2d 854 (1999). Therefore, no formal hearing is necessary. See, also, People v. Robetoy, 48 AD3d 881, 883 (3d Dept., 2008).

Defendant asserts she received ineffective assistance of counsel, which caused her plea to be involuntary since defense counsel "did not ask me any questions about the incident or my immigration status." See, Affidavit of Defendant, sworn to on March 15, 2012, p 1, para 3. Defendant states that she "would not have taken the plea if my attorney had informed me of my alternatives and the consequences of taking the plea…I did not understand that the probation sentence would have resulted in removal proceedings." See, Affidavit of Defendant, sworn to on March 15, 2012, p 2, para 14-15.

Pursuant to CPL Sec. 440.10(1)(h), the judgment against Defendant may be vacated if said judgment "was obtained in violation of a right of the defendant under the constitution of this state or of the United States." Clearly, the right to the effective assistance of counsel would constitute such a right. See, Strickland v. Washington, 466 US 668, 104 S. Ct. 2052 (1984); People v. Baldi, 54 NY2d 137, 444 NYS2d 893 (1981).

 

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Under Strickland, to resolve a claim of ineffective assistance of counsel, the court must engage in a two-prong analysis. The court must determine whether counsel's performance was deficient, and whether a defendant suffered actual prejudice as a result of counsel's deficiencies. 466 US at 687, 692.

A review of the sufficiency of a Defendant's allegations of ineffective representation rests within the discretion of the judge to whom the motion is made. See, People v. Tinsley, 35 NY2d 926, 927, 365 NYS2d 926 (1974). The court must review the totality of the circumstances of the case to resolve a claim of ineffective assistance of counsel. See, People v. McDonald, 296 AD2d 13, 17, 745 NYS2d 276 (3d Dept, 2002), aff., 1 NY3d 109, 769 NYS2d 781 (2003).

In McDonald, the New York State Court of Appeals followed the two prong test of Strickland and ruled that an attorney's failure to properly advise a defendant of the immigration consequences of his guilty plea could be the basis for a claim of ineffective assistance of counsel. However, while such a failure "falls below an objective standard of reasonableness," (1 NY3d at 113-114), the Court denied Defendant's application on the grounds that he failed to show "that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." 1 NY3d at 115, citing Hill v. Lockhart, 474 US 52, 59, 106 S Ct 366 (1984).

In Padilla v. Kentucky, 559 US -, 130 S Ct 1473 (2010), the United States Supreme Court ruled that the failure of a criminal defense attorney to properly advise a defendant of the immigration consequences of a guilty plea fell below an objective standard of reasonableness, and was a violation of the defendant's Sixth Amendment right to counsel. The Supreme Court based their ruling on the first prong of the Strickland standard. 130 S Ct at 1483.

It should be noted that the Supreme Court remanded Padilla for a review of whether or not the defendant was prejudiced by his counsel's error, the second prong of Strickland. 130 S Ct at 1483-1484.

To date, the New York Court of Appeals has yet to directly adopt Padilla. However, New

 

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York's lower courts have applied Padilla to circumstances similar to those presented here. In fact, there is appellate authority for the retroactive application of Padilla. See, People v. Baret, 2012 WL 4490828 (1st Dept, 2012) ("When a Supreme Court decision applies a well-established constitutional principle to a new circumstance, it is considered to be an application of an "old" rule, and is always retroactive."); People v. Nunez, 30 Misc3d 55, 58, 917 NYS2d 806 (App Term, 9th and 10th JD, 2010) ("In Padilla, the Supreme Court merely applied the well-established Strickland standard…a well-established old rule.").

This Court recognizes the authority of both the Appellate Division and the Appellate Term, and will follow Baret and Nunez. Padilla, which does not announce a new rule, but instead applied the "well-established Strickland standard," will be retroactively applied to this matter.

One question does arise as to whether Padilla's retroactive effect extends as far back as 2000, the year in which Defendant was convicted in this matter. For the following reasons, this Court will apply Padilla only to cases that are decided after the 1996 amendment of the Immigration and Nationality Act.

In Medina v. United States, 2012 WL 742076, (SDNY, 2012), the Southern District of New York refused to apply Padilla to a 1986 conviction. The Court held that the 1996 amendment of the Immigration and Nationality Act, removed "the Attorney General's power to grant discretionary relief from deportation…'(i)f a noncitizen committed a removal offense after the 1996 effective date of these…amendments…removal is practically inevitable…'"ii 2012 WL 742076 at 3, citing Padilla, 130 S Ct at 1480.

Since "Medina's conviction occurred before 'prevailing professional norms' had come to recognize advise on immigration consequences as necessary to representation of a criminal defendant considering a guilty plea…(t)he rule announced in Padilla cannot reach back further than the laws and conditions that…dictated it."iii2012 WL 742076 at 6-7 (citations omitted). See, also, People v. Floyd, 35 Misc3d 1215(A), 2012 WL 1414943 (Crim Ct, Kings Cty, 2012).

Defendant in this matter was convicted in 2000, after the 1996 amendment of the Immigration and Nationality Act. Therefore, Padilla is applicable to this matter.

 

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Turning to the analysis necessary under the first prong of Strickland, Defendant asserts that her defense counsel at the time she entered her guilty plea "did not ask me any questions about the incident or my immigration status." See, Affidavit of Defendant, sworn to on March 15, 2012, p 1, para 3. Neither the People, nor the Defense, offer any statement from this attorney. Thus, this Court will accept Defendant's uncontested allegation. Defendant is deemed to have established that she was never informed of the consequences of her guilty plea.

Defendant has therefore established the first prong of the Strickland test — her counsel's performance fell below minimum standards of competent representation. However, Defendant fails to establish the second prong — that she suffered prejudice as a result of her reliance on her attorney's failure to provide her with proper advice.

A review of the minutes of Defendant's court appearance on June 22, 2000, which is attached to Defendant's Motion dated March 15, 2012 as Exhibit B, shows that the People initially offered Defendant a plea to the charge and 15 days jail. See, plea and sentence minutes of June 22, 2000, p. 2. After hearing some of the facts regarding Defendant's arrest, the Court offered Defendant a plea to the charge and probation. See, plea and sentence minutes of June 22, 2000, p. 3. At this point, Defense Counsel entered Defendant's plea of guilty to the top charge of the Criminal Court complaint. See, plea and sentence minutes of June 22, 2000, p. 3.

Defendant accepted this plea even after her attorney stated "I have advised her that the more reasonable sentence for her is the 15 days jail advised her not to takes probation. She wishes, however, to proceed with the probation sentence." See, plea and sentence minutes of June 22, 2000, p. 3. The Court followed up on Defense Counsel's statement, and asked the Defendant "do you understand what your lawyer just said, that she thinks, given the fact that you have been arrested several times recently, that you run the risk of facing a 90 day jail sentence if you mess up with probation? Do you understand what I'm saying?" Defendant replied "Yes, sir." See, plea and sentence minutes of June 22, 2000, p. 4.

The Court then instructed Defendant that her plea was to "criminal possession of

 

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marijuana in the fifth degree, a class B misdemeanor . Do you wish to do that?" the Defendant answered "yes, sir." See, plea and sentence minutes of June 22, 2000, p. 4. Defendant was also advised "you will have a criminal record as a result of this plea," to which the Defendant also answered "yes, sir." See, plea and sentence minutes of June 22, 2000, p. 4.

Defendant was asked if she understood that by her plea, "you give up your right to trial, right to confront witnesses, right to remain silent, your right to have a laboratory report in this case and other rights you may have in connection with this case? Do you understand that?" Defendant answered "yes." See, plea and sentence minutes of June 22, 2000, p. 5.

Defendant was also asked if anyone had forced her to plead guilty. She answered "no, sir," to that question. Defendant was then asked if she was "entering this plea of your own free will?" Defendant answered "yes, sir" to that question. See, plea and sentence minutes of June 22, 2000, p. 5.

Defendant was specifically asked "on June 21st, year 2000, about 4:30 in the afternoon, were you in the vicinity of 1258 Prospect Place here in Brooklyn, New York?" and "At that time and location, did you have some marijuana in your possession?" Defendant answered "yes, sir." to both questions. See, plea and sentence minutes of June 22, 2000, p. 5.

The Defendant was also given the opportunity to speak before sentence was imposed. She declined. See, plea and sentence minutes of June 22, 2000, p. 6.

"The foregoing sufficiently establishes that defendant's plea was voluntary and knowing." People v. Brown, 126 AD2d 898, 901, 510 NYS2d 923 (3d Dept., 1987), app. den., 70 NY2d 703, 519 NYS2d 1037 (1987). There is no evidence on the record presented that Defendant did not understand the terms of her plea bargain. There are no deficiencies in the plea allocution or inconsistencies in Defendant's responses. Her answers were clear and unequivocal. Thus, the minutes of Defendant's plea and sentence establish very clearly that Defendant gained the benefit of a negotiated plea bargain, in which she received a sentence which avoided a possible term of incarceration. See, People v. Bankowski, 134 AD2d 768, 521 NYS2d 809 (3d Dept, 1987).

 

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Further, Defendant is no stranger to the criminal justice system. Though this matter represents her first criminal conviction, she has had contact for marijuana related charges prior to this case. See, Defendant's arrest history, Court file. It is immaterial that those matters resulted in non-criminal dispositions.

At her arraignment in this matter, Defendant was offered a plea to the charge and 15 days jail by the People. When the Court offered the Defendant a non-jail sentence, Defendant's counsel entered the plea on her behalf. See, plea and sentence minutes of June 22, 2000, p. 3. Counsel offered this plea only after she stated, "I have advised (the Defendant) that the more reasonable sentence for her is the 15 days jail advised her not to takes probation. She wishes, however, to proceed with the probation sentence." See, plea and sentence minutes of June 22, 2000, p. 3 (emphasis added).

It is significant to note that the Court then acted to confirm Defense Counsel's statement, and asked the Defendant "do you understand what your lawyer just said, that she thinks, given the fact that you have been arrested several times recently, that you run the risk of facing a 90 day jail sentence if you mess up with probation? Do you understand what I'm saying?" Defendant replied "Yes, sir." See, plea and sentence minutes of June 22, 2000, p. 4.

Under these circumstances, Defendant was not prejudiced in any way by her attorney's shortcomings. In fact, the record shows that "defendant was…solely motivated to plead guilty in order to avoid — at all cost — a…prison term." See, People v. Robles-Mejia, 27 Misc3d 1219(a), 2010 WL 1855762 (S Ct Bx Cty 2010).

Therefore, under the totality of the circumstances, and Defendant's failure to establish prejudice due to her attorney's ineffective assistance, under the second prong of Strickland, Defendant's motion is denied.

All other arguments advanced by Defendant have been reviewed and rejected by this Court as being without merit.

 

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This shall constitute the opinion, decision, and order of the Court.