| People v Blackman |
| 2018 NY Slip Op 07982 [166 AD3d 1321] |
| November 21, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Billy Joe P. Blackman, Appellant. |
James Sacco, Binghamton, for appellant.
Stephen K. Cornwell Jr., District Attorney, Binghamton (Anthony J. Frank ofcounsel), for respondent.
Clark, J. Appeal, by permission, from an order of the County Court of BroomeCounty (Dooley, J.), entered August 31, 2017, which denied defendant's motion pursuantto CPL 440.10 to vacate the judgment convicting him of the crimes of criminalpossession of marihuana in the first degree, criminal sale of marihuana in the first degree,criminal possession of marihuana in the fourth degree and unlawful possession ofmarihuana (two counts), without a hearing.
In April 2011, following an investigation into marihuana trafficking in BroomeCounty, defendant was charged in a five-count indictment with criminal possession ofmarihuana in the first degree, criminal sale of marihuana in the first degree, criminalpossession of marihuana in the fourth degree and unlawful possession of marihuana (twocounts). The matter ultimately proceeded to a jury trial in 2012, at the conclusion ofwhich defendant was convicted on all counts and sentenced to a term of imprisonment.Upon appeal, this Court affirmed (118 AD3d 1148 [2014], lv denied 24 NY3d1001 [2014]).
After exhausting his criminal appeals, defendant, who was born in Guyana, moved tovacate the judgment of conviction pursuant to CPL 440.10, contending that he had beendenied the effective assistance of counsel. Specifically, defendant alleged that he wasdeprived of meaningful representation because his trial attorney failed to apprise him ofthe potential immigration consequences of a conviction on the subject charges and toexplore, negotiate and [*2]procure animmigration-friendly plea offer, i.e., one that would not have exposed defendant todeportation. The People opposed defendant's application, stating that trialcounsel—who was affiliated with a law firm that purportedly specialized inimmigration law—had in fact negotiated and secured a favorable plea offer fordefendant and that defendant had rejected that offer in favor of proceeding to trial.County Court denied the motion without a hearing, and defendant now appeals bypermission.
"Although a hearing on a CPL 440.10 motion is not always necessary, a hearing isrequired where the defendant bases the motion upon nonrecord facts that are materialand, if established, would entitle the defendant to relief" (People v Monteiro, 149AD3d 1155, 1156 [2017] [citation omitted]; see CPL 440.30 [5]; People vSatterfield, 66 NY2d 796, 799 [1985]). In support of his motion to vacate thejudgment of conviction, defendant tendered his own affidavit, wherein he asserted thathe had completed his prison sentence and period of postrelease supervision and that hewas being held at a federal detention facility pending deportation proceedings. He statedthat trial counsel failed to inform him of the immigration consequences of beingconvicted as charged and that, had he been so informed, he would have asked trialcounsel "to explore the possibility of a plea bargain rather than take the case to trial, eventhough [he] continued to maintain [his] innocence." He further stated that trial counsel'sfailure to present him with any plea offer, or to inform him of potential deportationconsequences, "caused [him] to forgo any discussion of a plea bargain."
In opposition, the People tendered the affirmation of the Assistant District Attorney(hereinafter ADA) assigned to prosecute this matter. The ADA stated that, afterdefendant's initial attorney rejected a preindictment plea offer of attempted criminal saleof marihuana in the first degree, trial counsel was retained and entered into negotiationswith the People regarding a postindictment plea deal. According to the ADA, he anddefendant's trial counsel had a May 2011 telephone conference with County Court(Cawley Jr., J.), during which "defendant's potential immigration issues [were] raised."The ADA stated that he reiterated the plea offer of attempted criminal sale of marihuanain the first degree with the additional requirement that defendant waive his right toappeal and that trial counsel rejected this offer during the telephone conference andasked for a "different offer." The ADA stated that, at that time, the People maintainedtheir position that a felony sale conviction and a state prison sentence were warrantedunder the circumstances.
Approximately one year later, County Court sent a letter to the parties—whichthe People attached to the ADA's affirmation—scheduling a pretrial conferenceand instructing the People to come bearing their "best offer." The ADA averred that,during an ensuing telephone conference, trial counsel "again rais[ed] the potentialimmigration consequences to . . . defendant" relative to the People'sprevious offer and asked the People to reconsider. As evidenced by a letter dated May31, 2012, the People ultimately relented, at County Court's urging, and offered to permitdefendant to plead guilty—in full satisfaction of the underlyingindictment—to criminal possession of marihuana in the first degree, subject tocertain conditions and sentencing parameters. The ADA asserted that the matter was setfor "an accept or reject appearance" or conference on June 1, 2012, but that he receivedan email from County Court canceling the conference. The email, which was sent onJune 1, 2012 and attached to the ADA's affirmation, stated that trial counsel hadcontacted County Court by telephone and indicated that "defendant had informed himthat he d[id] not want the offer." The matter thereafter proceeded totrial.
[*3] A defendant's right to meaningfulrepresentation encompasses "the conveyance of accurate information regarding pleanegotiations, including relaying all plea offers made by the prosecution" (People v Brett W., 144 AD3d1314, 1315 [2016] [internal quotation marks and citations omitted]; see People v Maldonado, 116AD3d 980, 980 [2014]). "In order to prevail on an ineffective assistance of counselclaim based upon the defense counsel's failure to adequately inform the defendant of aplea offer, the defendant has the burden of establishing that the People made the pleaoffer, that the defendant was not adequately informed of the offer, that there was areasonable probability that the defendant would have accepted the offer had counseladequately communicated it to him [or her], and that there was a reasonable likelihoodthat neither the People nor the court would have blocked the alleged agreement" (People v Nicelli, 121 AD3d1129, 1129-1130 [2014] [citations omitted], lv denied 24 NY3d 1220[2015]; accord People v Brett W., 144 AD3d at 1316).
In our view, defendant alleged sufficient facts which, if credited, may establishineffective assistance of counsel based upon trial counsel's alleged failure to adequatelyinform him of an extended plea offer (see People v Monteiro, 149 AD3d at 1156;People v Diallo, 113 AD3d199, 202 [2013]; see generally People v Brett W., 144 AD3d at 1316-1317).The ADA's affirmation and attached documentary evidence demonstrated that the Peopleoffered defendant a plea deal that did not expose him to deportation and that there was areasonable likelihood that, had defendant accepted the offer, neither the People norCounty Court would have blocked the agreement. The People's submissions furtherestablished that defendant's trial counsel was aware of the favorable plea offer. However,there was nothing to controvert defendant's claim that his trial counsel did not presenthim with "any plea bargain[ ]." Neither the plea offer nor defendant's alleged rejectionthereof was placed on the record. Additionally, while County Court's June 2012 email tothe ADA provides circumstantial evidence that defendant's trial counsel communicatedthe plea offer to defendant and that defendant rejected the offer, it does not conclusivelyrefute defendant's assertion that he was not informed of any plea offer (see CPL440.30 [4] [c]). Nor can we conclude—as County Court (Dooley, J.)did—that there is no reasonable possibility that defendant's assertion is true(see CPL 440.30 [4] [d]). Furthermore, even if it was established that trialcounsel did in fact inform defendant of the plea offer, a question remains as to whethertrial counsel adequately communicated the offer, which would include a discussion ofany potential immigration consequences (see People v Santos, 145 AD3d 461, 462 [2016]; seegenerally Padilla v Kentucky, 559 US 356, 374 [2010]).
Finally, considering the immigration consequences to which defendant was exposedby virtue of the criminal charges against him, we find that defendant's assertions warranta hearing on the issue of whether there was a reasonable probability that he would haveaccepted the proffered plea deal had it been adequately communicated to him (seePeople v Diallo, 113 AD3d at 202; see generally People v Nicelli, 121 AD3dat 1129-1130). Unlike County Court, we do not find defendant's persistent claims ofinnocence, which he maintained throughout trial and in his CPL 440.10 motion, toundermine any such conclusion. The question of whether defendant's assertions werecredible should have been resolved after a hearing, "where credibility could have beenassessed on a more substantial basis than on a written statement" (People v Lou, 95 AD3d1035, 1036 [2012], lv denied 19 NY3d 1027 [2012]; accord People vDaniels, 48 AD2d 905, 906 [1975]; see generally People v Bodah, 67 AD3d 1195, 1196[2009], lv denied 14 NY3d 838 [2010]; People v Holdridge, 128 AD2d1000, 1001 [1987], lv denied 70 NY2d 648 [1987]). Accordingly, as CountyCourt erred in summarily resolving defendant's motion, we remit the matter for ahearing.
[*4] Lynch, J.P., Mulvey, Rumsey andPritzker, JJ., concur. Ordered that the order is reversed, on the law, and matter remitted tothe County Court of Broome County for further proceedings not inconsistent with thisCourt's decision.