| People v Pastor |
| 2016 NY Slip Op 01040 [136 AD3d 493] |
| February 11, 2016 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Natalio Pastor, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Robin Nichinsky ofcounsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Emily A. Aldridge of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Denis J. Boyle, J.), rendered October 5,2011, convicting defendant, upon his plea of guilty, of assault in the second degree, andsentencing him to a term of nine months, affirmed.
Defendant's challenges to his plea are unpreserved, and they do not come within thenarrow exception to the preservation requirement (see People v Conceicao, 26 NY3d 375 [2015]; People v Peque, 22 NY3d168, 183 [2013], cert denied sub nom. Thomas v New York, 574 US&mdash, 135 S Ct 90 [2014]). We decline to review these claims in the interest ofjustice. As an alternate holding, we find no basis for reversal.
Defendant argues that his guilty plea was not knowingly, intelligently and voluntarilymade because the trial court failed to ask him about a possible justification defense.Defendant argues that at sentencing, the court noted it had read the presentence report,and the court should have advised defendant about a possible justification defense.However, during the plea allocution itself, defendant said nothing that negated anyelement of the crime (see People v Toxey, 86 NY2d 725 [1995]), or raised thedefense of justification. In the absence of a motion to withdraw the plea, the court had noobligation to conduct a sua sponte inquiry into a statement by defendant, reflected in thepresentence report, that alluded to a possible justification defense (see e.g. People v Praileau, 110 AD3d415 [1st Dept 2013], lv denied 22 NY3d 1202 [2014]).
Defendant further claims his plea was not knowingly, intelligently and voluntarilymade because he was misadvised about potential immigration consequences of his plea.During the allocution, the court stated, "Now under the law, I have the responsibility totell you if you are not a citizen, you may face deportation or denial of your naturalizationgiven this plea today; is that understood?" Defendant replied yes. Defense counsel thensaid, "Judge, I want to put on the record that although I fully discussed the consequencesof this plea with my client, although it is not relevant to this case [sic]." Here, asrequired, the court correctly notified defendant that if he was not a United States citizen,he may be deported upon a guilty plea (see Peque, 22 NY3d at 196-197). Thecourt assured itself that defendant knew of the possibility of deportation prior to enteringthe guilty plea, and therefore the plea was knowing, intelligent and voluntary (id.at 176, 196-197). Additionally, counsel stated that he had fully discussed theconsequences of the plea with defendant.
The dissent focuses on the portion of defense counsel's statement, which was madefollowing the court's immigration warning, that "it is not relevant to this case," andargues the court should have "rectified" the misstatement. However, nothing in the recordshows this was a misstatement. Defendant was not here legally, and counsel's statementcould have been based on the fact that defendant was subject to removal for otherreasons, which would have made the deportation consequences of this plea irrelevant. Italso is possible counsel made this statement because defendant was prepared to pleadguilty despite any potential immigration consequences of this plea. In any event, on thisrecord, we do not know exactly what counsel was thinking, but [*2]it is not correct to characterize this as incorrect legal advice.Peque does not require that the court ascertain more information about counsel'sdiscussions with defendant. Rather, it mandates that the court give defendant theappropriate warning.
The dissent cites People v Belliard (135 AD3d 437 [2016]) to show that thetrial court's failure to clarify defense counsel's statement amounted to a Pequeviolation. In Belliard however, the trial court did not apprise defendant that,if he was not a United States citizen, he could be deported as a consequence upon hisguilty plea. Here, the court gave the correct warning and satisfied Peque(Peque at 176, 196-197).
Finally, defendant in his appellate brief expressly states he is seeking only vacatur ofthe plea and dismissal of the indictment, and not a remand. Yet, despite this statement,the dissent would order a hearing before the trial court. We note vacatur of the plea anddismissal of the indictment is not a remedy available to defendant because noPeque violation appears on the record and he has not established prejudice as amatter of law. To the extent that defendant is suggesting his attorney gave himmisadvice, his remedy, if any, is to file a CPL 440.10 motion. Concur—Tom, J.P.,Sweeny and Richter, JJ.
Manzanet-Daniels, J., dissents in part in a memorandum as follows: On September20, 2011, defendant appeared before the court with a Spanish interpreter. Defendantpleaded guilty to assault in the second degree, the sole original charge against him, inexchange for a term of nine months.
During the allocution, the court informed defendant that "if you are not a citizen, youmay face deportation or denial of your naturalization given this plea today; is thatunderstood?" After a pause, defendant replied, "Yes." Counsel added that he had fullydiscussed the consequences of the plea with his client, although "it is not relevant to thiscase." On October 5, 2011, the court sentenced defendant in accordance with the pleaagreement. The court noted that it had read the presentence report, but did not refer to itscontents. The report indicated that defendant had been born in Mexico on April 3, 1970,and had been in the country illegally since 2001. Defendant and his wife had fivechildren born in the United States.
Defendant's plea was not knowingly and voluntarily made because he wasmisadvised about the immigration consequences flowing from his plea. In People v Peque (22 NY3d168 [2013], cert denied sub nom. Thomas v New York, 574 US &mdash,135 S Ct 90 [2014]), the Court of Appeals held that before accepting a plea, due processrequires that a court "apprise a defendant that, if the defendant is not an Americancitizen, he or she may be deported as a consequence of a guilty plea to a felony"(id. at 176). The Court reasoned that "fundamental fairness . . .requires a trial court to make a noncitizen defendant aware of the risk of deportationbecause deportation frequently results from a noncitizen's guilty plea and constitutes auniquely devastating deprivation of liberty" (id. at 193). Accordingly, "anoncitizen defendant convicted of a removable crime can hardly make 'a voluntary andintelligent choice among the alternative courses of action' " unless informed ofthe possibility of deportation (id. at 192).
The court's initial advice to defendant—i.e., that if he were a noncitizen theremight be immigration consequences—was immediately negated by counsel, whonoted that he had discussed the consequences of the plea with his client andstated—incorrectly—that those consequences were "not relevant to thiscase." The court did nothing to rectify the misstatement, essentially endorsing it. Thiscase is in all relevant respects similar to a recent one in which we found that the court'sfailure to clarify defense counsel's statement that "[immigration consequences are] notapplicable in this case," amounted to a Peque violation (People v Belliard,135 AD3d 437, 437 [2016]). In Belliard, the court's failure to countermanddefense counsel's erroneous statements that "immigration consequences" were "notapplicable in this case," left the defendant with a mistaken view regarding theimmigration consequences of his plea; so too, here, counsel's statement that immigrationconsequences were "not relevant to this case" had the effect of undermining the court'sinitial advice to defendant.
[*3] Defendantshould be afforded the opportunity to move to vacate his plea upon a showing of a"reasonable probability that, had the court warned the defendant of the possibility ofdeportation, he or she would have rejected the plea and opted to go to trial"(Peque, 22 NY3d at 176). After 10 years in the United States, with five minorcitizen children reliant on him for support, defendant was potentially eligible to become alawful permanent resident (see 8 USC § 1229b [b] [1] [cancellationof removal and adjustment of status for certain nonpermanent residents]). Such relief isnot available to one convicted of a "crime involving moral turpitude" such as the one towhich defendant pleaded guilty (8 USC § 1182 [a] [2] [A] [I]). I wouldaccordingly hold the appeal in abeyance pending remand for a prejudice hearing.Defendant has not expressly requested a hearing, believing the prejudice to him to bepatent from the record; however, a majority of the Peque court decreed that ahearing, and not automatic vacatur of the plea, is the proper remedy for theviolation.