| People v Johnson |
| 2019 NY Slip Op 08348 [177 AD3d 484] |
| November 19, 2019 |
| Appellate Division, First Department |
[*1](November 19, 2019)
| The People of the State of New York,Respondent, v Patrick Johnson, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno ofcounsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Michael J. Yetter of counsel), forrespondent.
Appeal from judgment, Supreme Court, New York County (Michael R. Sonberg, J.),rendered March 7, 2017, convicting defendant, upon his plea of guilty, of criminalpossession of a controlled substance in the third degree, and sentencing him to a term oftwo years, held in abeyance, and the matter remanded for further proceedings inaccordance herewith.
Defendant was deprived of effective assistance when his counsel advised his clientthat because of his plea, he will most likely be deported, since it is clear that defendant'sdrug-related conviction would trigger mandatory deportation under 8 USC§ 1227 (a) (2) (B) (i) (see Padilla v Kentucky, 559 US 356, 368-369[2010]; People v Pequero,158 AD3d 421 [1st Dept 2018]; People v Doumbia, 153 AD3d 1139 [1st Dept 2017]; People v Corporan, 135 AD3d485 [1st Dept 2016]). The remarks made by counsel on the record to the judge, as towhat he advised his client with regard to the immigration consequences of his plea, aresufficient to permit review on direct appeal (see Doumbia, 153 AD3d at 1139).Thus, we hold this matter in abeyance to afford defendant the opportunity to move tovacate his plea upon a showing that there is a reasonable probability that he would nothave pleaded guilty had he been made aware of the deportation consequences of hisplea.
The People's reliance on People v Pastor (28 NY3d 1089 [2016]) is misplaced. InPastor, the Court of Appeals simply held that the defendant's contention "that hisattorney misadvised him about the immigration consequences of his plea" should beraised by way of a CPL 440.10 motion as the plea record on its face did not support hiscontention that he received "mis-advice" (id. at 1091). Unlike Pastor, therecord here is sufficient to permit review on direct appeal. Concur—Renwick, J.P.,Gische, Gesmer, Moulton, JJ.
Tom, J., dissents in a memorandum as follows: I disagree with the majority'sconclusion that trial counsel provided defendant with ineffective assistance as a matter oflaw on the basis of the existing record as well as the majority's basis for remanding,which fails to account for CPL 440.10. Hence, I respectfully dissent.
The majority is reaching its conclusion on the basis of the existing record. The recordindicates that defendant was provided at his arraignment with a notice of the immigrationconsequences of a conviction. During a plea colloquy with the court and the prosecutor,counsel, who appeared with defendant, evinced his awareness that the drug offensecharged would result in an automatic deportation, as counsel discussed with the court andthe prosecutor. Hence, we cannot speculate that counsel may have been unaware of theconsequences of a conviction and on such a basis may have misinformed defendant.During a subsequent appearance, counsel informed the court that he intended to discussthe plea with defendant "next Saturday," that "[t]here's immigration issues but I don'tthink the [i]mmigration issues, they are going to be there one way or the other. I expectwe will be able to take this plea but I want to discuss fully with" defendant. Discussingwith defendant "fully" what counsel had acknowledged to the court—thatdeportation was automatic—at least suggests a basis for an informed, proper,advisement.
During the subsequent plea proceeding, counsel informed the court that he had"advise[d] [defendant] of the immigration consequences, that he is here and will mostlikely be deported with a felony plea, and I have given him everything." This phrasing,"most likely," needs to be explored, but this was an informal discussion between counseland the court in which defendant did not participate.
Defendant himself then tried to bargain with the court for a sentence that would, inthe aggregate, amount to the same time, two years, but would be broken up into twoconsecutive one-year terms. Counsel explained that defendant's request was "because ofthe immigration issues that are involved," another indication that defendant fullyunderstood the ramifications of a plea from a deportation perspective. When the courtexplained that the requested sentence could not be imposed, defendant inquired into themaximum term he faced. When the court advised that it was nine years, defendantaccepted the two-year offer and allocuted to the facts of the crime. The court inquiredwhether defendant had "discussed the immigration consequences" with counsel ofpleading guilty; defendant answered yes, and that he "wish[ed] to plead guilty regardlessof any adverse immigration consequences that may result."
This was not an uninformed defendant; however, in view of some of this Court'srecent decisions that require a rigorous catechism by which counsel informs thedefendant of the certainty of deportation upon conviction of designated categories ofcrimes (see e.g. People vRodriguez, 165 AD3d 546 [1st Dept 2018]; People v Pequero, 158 AD3d 421 [1st Dept 2018]), thereexists a possibility that defendant was not fully informed. However, ascertaining thatrequires further fact-finding.
Procedurally, it seems clear that when an ineffective assistance of counsel claim israised by a defendant, if "the record does not make clear, irrefutably, that a right tocounsel violation has occurred, the claimed violation can be reviewed only on a post-trialmotion under CPL 440.10, not on direct appeal" (People v McLean, 15 NY3d 117, 121 [2010]). Defendant'spresent claim that his counsel provided him with ineffective assistance regarding theimmigration consequences of his plea (see Padilla v Kentucky, 559 US 356[2010]) is unreviewable on direct appeal because it involves matters not reflected in therecord regarding the full extent of counsel's immigration advice. Contrary to the positiontaken by the majority, I am convinced that without an expansion of the record, it isimpossible to determine whether an isolated immigration-related phrase in counsel'scolloquy with the court—not with defendant—regarding a possibledisposition reflected the advice defendant actually received from his counsel.Accordingly, since defendant has not made a CPL 440.10 motion, the merits of this claimmay not be addressed on appeal (see People v Pastor, 28 NY3d 1089, 1091 [2016]; compare People v Doumbia,153 AD3d 1139 [1st Dept 2017] [content of actual advice placed on therecord]).
Moreover, the People served defendant with a notice of immigration consequences,the court provided immigration warnings, and during the plea colloquy defendantconfirmed that he wanted to plead guilty regardless of any adverse immigrationconsequences.
Although the majority is remanding for findings as to prejudice, I believe that ispremature. It may even be unnecessary depending on the outcome of the CPL 440proceeding, should defendant be advised to pursue that relief. In that event, the motioncourt should be able to examine prejudice if it first finds ineffective assistance ofcounsel.