| People v Pinto |
| 2015 NY Slip Op 08441 [133 AD3d 787] |
| November 18, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Elvin Pinto, Appellant. |
Labe M. Richman, New York, N.Y., for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Johnnette Traill, Jeanette Lifschitz, and Tina Grillo of counsel), for respondent.
Appeals by the defendant, by permission, from (1) an order of the Supreme Court,Queens County (Wong, J.), dated September 22, 2014, which, without a hearing, deniedhis motion pursuant to CPL 440.10 to vacate a judgment of the same court renderedApril 24, 2003, convicting him of attempted criminal sale of a controlled substance in thethird degree, upon his plea of guilty, and imposing sentence, and (2) an order of the samecourt dated January 29, 2015, which denied his motion, in effect, to renew his motionpursuant to CPL 440.10 to vacate the judgment rendered April 24, 2003.
Ordered that the order dated September 22, 2014, is reversed, on the law and as amatter of discretion, the order dated January 29, 2015, is vacated, and the matter isremitted to the Supreme Court, Queens County, for a hearing and a new determinationthereafter of the defendant's motion; and it is further,
Ordered that the appeal from the order dated January 29, 2015, is dismissed asacademic in light of our determination of the appeal from the order dated September 22,2014.
The defendant is an immigrant from Colombia who has resided in the United Statessince 1994, when he was approximately 18 years old. On March 28, 1994, he obtainedpermanent resident status through his parents.
In 2002, the defendant was charged with criminal sale of a controlled substance inthe third degree and certain lesser included offenses. On February 14, 2003, he pleadedguilty to a single count of attempted criminal sale of a controlled substance in the thirddegree, in satisfaction of Queens County superior court information No. 10034/03. At theplea proceeding, the defendant was represented by attorney Phillip Middler, who washandling the case for the defendant's attorney, William Ezersky. The Supreme Courtasked defense counsel, "Is there any issue as to deportation of your client as a result ofthis?" Defense counsel replied, "There's a possibility of that, Judge." The court thenasked, "He still wants the plea despite that issue?" and defense counsel replied, "Yes."The court asked, "Counsel, have you discussed these matters with your client?" anddefense counsel replied, "Yes."
[*2] Thedefendant was promised a sentence of probation for a period of five years, with acondition that he complete a certain program. He was also advised that his driver licenseprivileges would be suspended. He waived his right to appeal. On April 24, 2003, thepromised sentence was imposed, and the defendant did not appeal from the judgment ofconviction.
On July 31, 2012, the defendant applied to the United States Citizenship andImmigration Services for United States citizenship. On July 2, 2013, his application wasdenied on the ground that the offense of which he had been convicted, attemptedcriminal sale of a controlled substance in the third degree, was an aggravated felony asdefined in 8 USC § 1101 (a) (43). Thus, as a matter of law, the convictionhad rendered him permanently ineligible for naturalization. Thereafter, the United StatesDepartment of Homeland Security commenced a removal proceeding against him, and hewas taken into custody and held in a facility operated by the Immigration and CustomsEnforcement Unit of the Department of Homeland Security (hereinafter ICE) in NewJersey while he awaited mandatory deportation.
On or about July 3, 2014, the defendant moved pursuant to CPL 440.10 to vacate hisjudgment of conviction, alleging that he received ineffective assistance of counsel inconnection with the entry of his plea of guilty. The defendant claimed, in an affidavit,that his attorney never advised him that he would be subject to mandatory deportation ifhe pleaded guilty to attempted criminal sale of a controlled substance in the third degree.Rather, he allegedly was advised that "it was only possible" that he would be deported asa result of his conviction. He claimed he never would have pleaded guilty if he hadknown the true immigration consequences. He alleged that he "was not guilty of the salethat I was accused of, but rather, only pled guilty because my attorney told me that it wasthe only way to avoid going to jail for a prolonged period of time, and because, he said Iwould have a chance to prevail if Immigration tried to deport me." The defendant'sattorney on the motion submitted an affirmation stating that he spoke to Middler, theattorney who appeared on behalf of the defendant at the plea proceeding, and askedMiddler to submit an affirmation in support of the motion. However, Middler did notreturn defense counsel's subsequent messages, and defense counsel was therefore unableto obtain an affirmation from Middler.
By order dated September 22, 2014, the Supreme Court denied the defendant'smotion. The court, citing Peoplev Argueta (46 AD3d 46 [2007]), reasoned that the defendant's allegation that hisattorney advised him that deportation was merely possible rather thanmandatory—even if true—was not an affirmative misrepresentation and didnot constitute ineffective assistance of counsel. The court also determined that thedefendant's claims were supported solely by his "self-serving" allegations, without anaffidavit from his former attorney concerning the advice that he actually received as tothe immigration consequences of his plea of guilty.
On or about November 3, 2014, the defendant, represented by new counsel, moved,in effect, to renew his motion to vacate the judgment of conviction. His attorney on thismotion stated in his affirmation that he contacted the defendant's original attorney for thecriminal proceeding, William Ezersky, about the advice Ezersky gave the defendant, andwas informed that Ezersky no longer had a file on the case, and had no memory of thecase. In an affidavit, the defendant claimed that Ezersky advised him, on the morning ofthe day he pleaded guilty, that people in his position are rarely deported, and if thedefendant were "put in proceedings, [he] would have a good chance of not gettingdeported." By order dated January 29, 2015, the Supreme Court denied the motion.Citing CPL 440.10 (3) (b) and (c), the court concluded that the issue raised waspreviously determined against the defendant on the merits, and the defendant could haveraised all grounds or issues in his prior motion to vacate the judgment of conviction. Thedefendant appeals, by permission, from the orders dated September 22, 2014, andJanuary 29, 2015.
CPL 440.10 provides that the court "must" deny a motion to vacate a judgment ofconviction when the ground or issue raised was previously determined on the merits onappeal from the judgment, or there were sufficient facts in the record which would havepermitted appellate review of the issue on direct appeal, but no review occurred owing tothe defendant's unjustifiable failure to perfect a direct appeal, or raise the issue on directappeal (CPL 440.10 [2] [a], [c]; see People v Hamilton, 115 AD3d 12, 20 [2014]). In thiscase, there was no appeal from the judgment, and the claims supporting the defendant'smotions involve matter both on and off the record. Therefore, the [*3]proper procedural course for the defendant was a motionpursuant to CPL 440.10 (seePeople v Diallo, 113 AD3d 199 [2013]; People v Maxwell, 89 AD3d 1108, 1109 [2011]).
A defendant seeking to vacate a judgment of conviction on the ground of ineffectiveassistance of counsel need not submit an affidavit or affirmation from his or her formerattorney attesting to counsel's ineffectiveness (see People v Radcliffe, 298 AD2d533, 534-535 [2002]; accordPeople v Washington, 128 AD3d 1397, 1399 [2015]). Moreover, here, thedefendant submitted an explanation for his failure to submit affirmations from his formerattorneys (see People v Morales, 58 NY2d 1008, 1009 [1983]), and some supportfor the defendant's allegations may be found in Middler's statement on the record at theplea proceeding indicating that deportation was only a "possibility."
In Padilla v Kentucky (559 US 356 [2010]), the United States Supreme Courtruled that the Sixth Amendment to the United States Constitution requires criminaldefense counsel to advise their noncitizen clients about the risk of deportation arisingfrom a guilty plea. However, that decision is not applied retroactively to state courtpostconviction proceedings (seePeople v Baret, 23 NY3d 777, 781 [2014]). Since the defendant's judgment ofconviction became final when his time to take an appeal expired—long beforePadilla was decided in 2010—Padilla is not applicable here.Therefore, "counsel's failure to warn a defendant that a guilty plea might lead to removalfrom the United States" (People v Baret, 23 NY3d at 785) does not, in this case,amount to ineffective assistance of counsel.
However, "inaccurate advice about a guilty plea's immigration consequencesconstitute[s]" ineffective assistance of counsel (id.; see People v McDonald, 1NY3d 109, 111 [2003]). In McDonald, the defendant was advised that hisconviction, upon his plea of guilty, would not result in his deportation (see id. at115). Here, the defendant allegedly was advised that his conviction carried the"possibility" of deportation, and the Supreme Court, citing People v Argueta (46 AD3d46 [2007]), concluded that this advice did not constitute ineffective assistance ofcounsel. In Argueta, the defendant's plea of guilty to possession of cocaine, whilenot an aggravated felony in and of itself, became an aggravated felony because of thedefendant's prior record. Counsel's alleged ineffectiveness in that case was his failure to"quantify the possibility or likelihood of deportation" (id. at 49), which he wasnot required to do. In this case, on the other hand, deportation was mandatory at the timethe defendant entered his plea of guilty based upon the offense itself (see 8 USC§ 1101 [a] [43]).
In People v Galan (116AD3d 787 [2014]), as in this case, the defendant pleaded guilty to criminal sale of acontrolled substance in the third degree, and was sentenced to a period of probation offive years. In 2010, the defendant was arrested on an unrelated charge, and ICE initiatedremoval proceedings on the ground that the crime was a deportable offense. At a hearingon the defendant's motion to vacate his judgment of conviction, the defendant's formerattorney testified that, in accordance with her general practice at the time, "she wouldhave advised the defendant that he would be subject to deportation as a result of hisguilty plea to a drug-related offense" (id. at 789). This Court ruled that thedefendant's motion to vacate his judgment of conviction should have been denied. In thiscase, on the other hand, the defendant claims he was advised that deportation was notlikely, and no evidence was submitted to refute that claim.
In order to secure the vacatur of his judgment of conviction, the defendant mustestablish that there was "a reasonable probability that, if counsel had informed him thathe was certain to be deported as a result of his guilty plea, he would not have pleadedguilty and would have gone to trial" (People v Hernandez, 22 NY3d 972, 976 [2013]). Here, inaddition to making the foregoing assertions in support of his motion, the defendantfurther claimed that if immigration consequences had been factored into the pleabargaining process, counsel might have been able to negotiate a different plea agreementthat would not have resulted in automatic deportation (see People v Chacko, 99 AD3d527, 527-528 [2012]). For example, if the defendant had pleaded guilty topossession of cocaine, he would not have been subject to mandatory deportation (seeAguirre v Immigration & Naturalization Serv., 79 F3d 315 [1996]).
In view of the foregoing, the defendant sufficiently alleged that counsel providedincorrect information concerning the deportation consequences of his plea of guilty, andthat he was [*4]prejudiced by counsel's conduct, towarrant a hearing. Accordingly, the matter must be remitted to the Supreme Court,Queens County, for a hearing (see People v Ricketts-Simpson, 130 AD3d 1149 [2015]; People v Reynoso, 88 AD3d1162 [2011]) and a new determination thereafter of the defendant's motion to vacatethe judgment of conviction. Leventhal, J.P., Roman, Hinds-Radix and Barros, JJ.,concur.