| People v Carty |
| 2012 NY Slip Op 04425 [96 AD3d 1093] |
| June 7, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v John Carty,Also Known as Jean Carty, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), forrespondent.
Spain, J. Appeal, by permission, from an order of the County Court of Broome County(Smith, J.), entered September 17, 2010, which denied defendant's motion pursuant to CPL440.10 to vacate the judgment convicting him of the crime of attempted criminal sale of acontrolled substance in the third degree, after a hearing.
In 2006, pursuant to a plea agreement, defendant waived indictment and pleaded guilty toone count of attempted criminal sale of a controlled substance in the third degree; the pleasatisfied a superior court information charging him with four counts of criminal sale of acontrolled substance in the third degree. The charges stem from a controlled purchase of cocaineby a confidential informant from defendant as part of an investigation into cocaine trafficking bythe Village of Endicott police department. Sentenced in July 2007 to one year in jail, defendantdid not appeal. After he was detained in September 2009 by immigration officials for removal,i.e. deportation, defendant, a non-United States citizen,[FN1]moved pursuant to CPL 440.10 to [*2]vacate the judgment ofconviction on the ground that his plea was not knowing, voluntary and intelligent and he hadbeen denied the effective assistance of counsel because his trial counsel (and County Court)failed to inform him of the immigration consequences of his 2006 guilty plea. County Court helda hearing at which defendant and his trial counsel testified. In a thorough written decision, thecourt denied defendant's motion to vacate. Defendant now appeals, by permission.
Under federal law, defendant's conviction as a resident alien for violating New York'scontrolled substance laws renders him "deportable" (8 USC § 1227 [a] [2] [B] [i];see 8 USC § 1101 [a] [43] [B]; People v Glasgow, 95 AD3d 1367-1368[2012]; People v Reynoso, 88 AD3d1162, 1163 [2011]). In Padilla v Kentucky (559 US —, — n 1,—, —, 130 S Ct 1473, 1477 n 1, 1483, 1486 [2010]), on which defendant relies, theUnited States Supreme Court ruled that where the immigration consequences of a guilty plea areclear, making deportation presumptively mandatory, defense counsel must accurately advisenoncitizen clients that their pleas carry the risk of deportation. Under the Sixth Amendment rightto counsel (see US Const 6th Amend), Padilla held that a defense counselprovides constitutionally deficient representation if he or she fails to accurately advise of thoseimmigration consequences or misadvises a noncitizen client, who will be entitled to relief if "'there is a reasonable probability that, but for counsel's unprofessional errors, the result of theproceeding would have been different' " (Padilla v Kentucky, 559 US at —, 130 SCt at 1482, quoting Strickland v Washington, 466 US 668, 694 [1984]; see Hill vLockhart, 474 US 52, 58-59 [1985]).
Here, while the Broome County Public Defender was initially assigned to representdefendant on the drug charges, a conflict developed and John Scanlon was then assigned torepresent defendant. Scanlon received defendant's file from the Public Defender's office, whichincluded four interview sheets (for the four pending charges) containing background informationregarding defendant, all indicating defendant's citizenship as "US." The parties stipulated at thehearing that a Public Defender intake specialist (who was excused on consent at the hearing anddid not testify) filled in the interview sheets with information obtained from defendant.
Defendant testified that he came to the United States from St. Martin as a baby with hismother and has always resided in New York as a permanent resident. He never applied forUnited States citizenship, even after his mother did so (during his adulthood) and afterlearning—years prior to his plea—that his brother had been deported to St. Martin.He claimed he believed that he might have become an "automatic citizen" of the United Statessince he came as an infant. After his arrest in 2006, he met with Scanlon several times andparticipated in the plea negotiations, but never informed him of his noncitizenship status; theynever discussed and he was not aware of the immigration consequences of his guilty plea.Defendant admitted to providing information about himself to the intake specialist who met withhim after his arrest, but did not recall telling her he was a "US" citizen, instead claiming that hehad indicated that his immigration status was "US Islands"; he did not, however, claim that hehad ever mistakenly believed that St. Martin was a United States territory.
Scanlon, an experienced attorney, testified that he met with defendant several times to reviewthe evidence against him, possible defenses, his sentencing exposure and the plea offers, [*3]and that defendant never informed him of his permanent residentstatus or raised any questions about the immigration consequences of a drug-related guilty plea.Scanlon did not raise the issue of potential immigration consequences with defendant during theplea negotiations because he had no reason to question defendant's perceived United Statescitizenship,[FN2]as reported in the intake interview sheets. A review of the plea colloquy discloses that the issuewas never raised on the record.
County Court properly denied defendant's motion to vacate the judgment of conviction,finding that he had not met his burden of proving either that trial counsel wasineffective[FN3]or that his plea was not knowing, voluntary and intelligent (see CPL 440.30 [6], [7]). Tothe extent that defendant relies upon Padilla v Kentucky (supra) to establish thattrial counsel's performance—i.e., failure to advise him of the immigration consequences ofhis plea—was deficient under the Sixth Amendment, we note that Padilla and itsprogeny presuppose that defense counsel is aware at the time of the plea that a client is anoncitizen and, thus, is duty-bound to accurately advise, and not to misadvise, the client aboutthe clear and serious immigration consequences of a guilty plea (see Padilla v Kentucky,559 US at —, 130 S Ct at 1484 [In holding that Strickland applies to counsel'sfailure to advise clients as well as to misadvice, the United States Supreme Court stated: "Whenattorneys know that their clients face possible exile from this country and separation fromtheir families, they should not be encouraged to say nothing at all" (emphasis added)]).
There was no evidence here that Scanlon was aware that defendant was a noncitizen, or [*4]that he should have been aware, or had any reason to raise the issueof defendant's citizenship. We do not read Padilla, as defendant urges, as establishing anaffirmative duty on the part of defense counsel to determine in every case a client's immigrationstatus; while this may be the better practice,[FN4]it has not been elevated to a constitutional mandate, and we decline to do so. We also defer toCounty Court's decision, after observing defendant's testimony,[FN5]to credit Scanlon's account that he had no reason to question defendant's citizenship (see People v Bodah, 67 AD3d1195, 1196 [2009], lv denied 14 NY3d 838 [2010]).
We agree that defendant failed to establish that counsel's representation "fell below anobjective standard of reasonableness" (Strickland v Washington, 466 US at 688), i.e., onthese facts the prevailing "practice and expectations of the legal community" (Padilla vKentucky, 559 US at —, 130 S Ct at 1482) did not obligate Scanlon to inquire intodefendant's citizenship. Moreover, County Court correctly determined that defendant failed toestablish prejudice, i.e., a "reasonable probability that, but for counsel's unprofessional errors, theresult of the proceeding would have been different" (Strickland v Washington, 466 US at694), which "focuses on whether counsel's constitutionally ineffective performance affected theoutcome of the plea process" (Hill v Lockhart, 474 US at 59; see People v McDonald, 1 NY3d109, 114 [2003]). Scanlon, with defendant's active input, negotiated a highly favorable pleato a single reduced felony charge, with one year in jail,[FN6]in satisfaction of four class B felonies for which defendant could have received consecutive stateprison sentences. Defendant's testimony did not convincingly establish "that a decision to rejectthe plea bargain would have been rational under the circumstances" (Padilla v Kentucky,559 US at —, 130 S Ct at 1485) or that "counsel's performance rendered the [plea]proceeding fundamentally unfair or left an unreliable result" (People v Henry, 95 NY2d563, 566 n [2000], citing Lockhart v Fretwell, 506 US 364, 369-370 [1993]). Thus,County Court correctly denied defendant's motion to vacate his judgment of conviction to theextent that it was premised upon the Sixth Amendment right to the effective assistance of counselas articulated in Padilla v Kentucky (supra) and Strickland v Washington(supra).[*5]
Likewise, defendant's state constitutional claim thatcounsel's failure to investigate his citizenship and advise him of the deportation consequences ofhis guilty plea deprived him of meaningful representation also lacks merit (see NY Const,art I, § 6; People v Benevento, 91 NY2d 708, 713 [1998]; see also People vHenry, 95 NY2d at 566). Under this analysis, we evaluate the prejudice component byfocusing on the "fairness of the process as a whole rather than [any] particular impact on theoutcome of the case" (People v Benevento, 91 NY2d at 714; see People v Henry,95 NY2d at 566). Upon review of the record as a whole, viewed in totality, we findthat—at the time of the plea proceedings—Scanlon provided meaningfulrepresentation (see People v Baldi, 54 NY2d 137, 147 [1981]).
Turning to defendant's claim that County Court's failure to advise him of the deportationconsequences of his plea violated his due process rights, we note that while CPL 220.50 (7)requires a court to so advise a defendant on the record prior to accepting a guilty plea to a felony,the statute expressly provides that the failure to so advise "shall not be deemed to affect thevoluntariness of a plea of guilty or the validity of a conviction" (CPL 220.50 [7]; see People v Gravino, 14 NY3d546, 554 n 3 [2010]). Further, as a matter of New York law, deportation remains a collateralconsequence[FN7]of a guilty plea (see People vHarnett, 16 NY3d 200, 205-206 [2011] [decided after Padilla]; People vGravino, 14 NY3d at 559 [same]) of which the trial court is not required under due processprinciples to advise a defendant prior to accepting a guilty plea (see People v Gravino, 14NY3d at 553-554, 559; People vCatu, 4 NY3d 242, 244 [2005]; People v Ford, 86 NY2d 397, 403-404 [1995];People v Peque, 88 AD3d1024, 1025 [2011]). Padilla spoke to the duties of defense counsel and did notexpand the duties of a trial court in this regard (see People v Rosario, 93 AD3d 605, 605 [2012]).
Finally, defendant has failed to demonstrate that his plea was not knowing, voluntary andintelligent on the ground that he was not informed, and was not aware, that his guilty plea wouldhave deportation consequences (see People v Fiumefreddo, 82 NY2d 536, 543 [1993]).County Court concluded that defendant, because of his family's experiences, had every reason(and opportunity) to raise the issue with counsel if it was a decisive factor in his plea decision,but did not do so. We are aware that the Court of Appeals has recently recognized the possibilitythat a guilty plea made in ignorance of a collateral consequence of that plea "may sometimes beproved involuntary" (People v Harnett, 16 NY3d at 207 ["(T)here may be (rare) cases inwhich a defendant can show that he (or she) pleaded guilty in ignorance of a consequence that,although collateral for purposes of due process, was of such great importance to him (or her) thathe (or she) would have made a different decision had that consequence been disclosed"]; seePeople v Gravino, 14 NY3d at 559). However, defendant has not persuasively demonstratedthat a lack of knowledge of the deportation consequences of his guilty plea "reasonably couldhave caused him, and in fact would have caused him, to reject an otherwise acceptable pleabargain" (People v Harnett, 16 NY3d at 207).[*6]
Lahtinen, J.P., Malone Jr., Kavanagh and McCarthy, JJ.,concur. Ordered that the order is affirmed.
Footnote 1: Defendant, born in the Frenchisland of St. Martin, was reportedly deported to France in September 2011. We decline to dismissthis appeal on this ground (see People vVentura, 17 NY3d 675, 679-682 [2011]).
Footnote 2: The narrow issue in this motionto vacate, as framed by defendant, is whether counsel's failure to advise defendant, prior to hisplea, of the immigration consequences of his plea constituted ineffective assistance of counsel.While the presentence report reflects that defendant is a "permanent resident," defendant hasnever claimed in this motion that counsel's failure to move to withdraw his guilty plea prior tosentencing, based upon that report, constituted ineffective assistance of counsel. We do notaddress that issue.
Footnote 3: Given our finding that defendantfailed to satisfy the two-prong Strickland test for ineffective assistance of counsel at hisplea, we need not decide whether Padilla is to be applied retroactively to defendant'scollateral attack upon his 2007 conviction. While Padilla, itself involving a motion forpost-conviction relief, suggested it would apply to collateral challenges to final convictions butdid not decide the issue (see 559 US at —, 130 S Ct at 1484-1486), the FederalCircuit Courts of Appeal are divided (compare United States v Chang Hong, 671 F3d1147, 1158 [10th Cir 2011] [Padilla is not retroactive], and Chaidez v UnitedStates, 655 F3d 684, 686 [7th Cir 2011], cert granted 566 US —, 2012 WL1468539, 2012 US LEXIS 3335 [2012] [same], with United States v Orocio, 645 F3d630, 633 [3d Cir 2011] [Padilla is retroactive]; see also Hill v Holder, 454 FedAppx 24, 25 n 2 [2d Cir 2012] [leaving question open]; State v Gaitan, 209 NJ 339, 371,37 A3d 1089, 1107 [2012] [Padilla is not retroactive]).
Footnote 4: Notably, the American BarAssociation guidelines on plea discussions and plea agreements advise that "[t]o the extentpossible, defense counsel should determine and advise the defendant . . . as to thepossible collateral consequences that might ensue from entry of the contemplated plea" (ABAStandards for Criminal Justice, Pleas of Guilty 14-3.2 [f], at 116 [3d ed 1999]).
Footnote 5: County Court, which had alsopresided over defendant's sentencing, expressly concluded that there was "nothing aboutdefendant's name, appearance, behavior, speech pattern or accent [that] remotely suggests thedefendant to be anything but an American [citizen]."
Footnote 6: While the plea agreement calledfor a nine-month jail sentence, defendant was released and failed to appear on the scheduledsentencing date. Arrested on a bench warrant, an enhanced sentence of one year in jail wasimposed after defendant declined to move to withdraw his guilty plea when advised by CountyCourt of its intentions to enhance the sentence.
Footnote 7: In Padilla, the UnitedSupreme Court indicated that it has "never applied a distinction between direct and collateralconsequences to define the scope of constitutionally 'reasonable professional assistance' requiredunder Strickland" (Padilla v Kentucky, 559 US at —, 130 S Ct at 1481),and concluded that it did not need to determine whether this distinction is appropriate underfederal law (id. at — - —, 1481-1482; see People v Gravino, 14NY3d at 554 n 4).