| People v Gomez |
| 2020 NY Slip Op 04518 [186 AD3d 422] |
| August 13, 2020 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v German Gomez, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno of counsel), forappellant.
Darcel D. Clark, District Attorney, Bronx (Christopher Michael Pederson of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Raymond L. Bruce, J.), rendered October 3, 2016,convicting defendant, upon his plea of guilty, of attempted criminal possession of a weapon inthe second degree, and sentencing him to a term of two years, affirmed.
Defendant's claim of ineffective assistance of counsel is not reviewable on direct appeal,because the existing record does not make "irrefutably" clear "that a right to counsel violation hasoccurred" (People v McLean, 15NY3d 117, 121 [2010]). Specifically, the existing record does not reveal the adviceconcerning the immigration consequences of the plea that defendant actually received from histrial counsel. Rather, the record reflects only counsel's representation to the court that he haddiscussed all "possible consequences" with defendant, counsel's refusal of the court's offer ofadditional time to research the plea's immigration consequences, and counsel's assurance to thecourt that "[w]e've looked into everything." Without further development of the record by way ofa CPL 440.10 motion, it cannot be determined exactly what discussions were had with defendantregarding the immigration consequences of his plea, including whether counsel mis-adviseddefendant.
Contrary to defendant's argument, his trial counsel's general representations to the court thatdefendant had been advised of "all possible consequences" of the plea and that "[w]e've lookedinto everything" do not establish, under binding precedent of the Court of Appeals, that counselfailed to advise defendant that he would be subject to mandatory deportation based on this plea.The Court of Appeals has held repeatedly that "the lack of an adequate record bars review ondirect appeal not only where vital evidence is plainly absent . . . but wherever therecord falls short of establishing conclusively the merit of the defendant's claim. . . .Thus where the record does not make clear, irrefutably, that a right to counsel violationhas occurred, the claimed violation can be reviewed only on a post-trial motion under CPL440.10, not on direct appeal" (McLean, 15 NY3d at 121 [emphasis added]). Cases inwhich the record on direct appeal affords irrefutable proof of counsel's ineffectiveness are"exception[al]" (People v Nesbitt,20 NY3d 1080, 1082 [2013]; see also People v Bell, 48 NY2d 933, 935 [1979] [therecord on direct appeal "establishes beyond peradventure . . . clear ineffectiveness ofcounsel"]).
Only a few weeks ago, the Court of Appeals, in holding that a CPL 440.10 motion wasrequired to create a record to support the defendant's claim that he had received ineffectiveassistance of counsel, reiterated the principle that review of an ineffectiveness claim on directappeal requires a record that establishes an irrefutable basis for the claim: "Generally, theineffectiveness of counsel is not demonstrable on the main record but rather requiresconsideration of factual issues not adequately reflected on that record. By codifying the writ oferror coram nobis in CPL article 440, the Legislature crafted a procedure for such scenarios. Tothat end, article 440 permits defendants to complete the record by putting forth sworn factualallegations in support of a motion to vacate the judgment of conviction and authorizesevidentiary hearings on those motions (CPL 440.10, 440.30), thereby providing a vehiclespecifically for the investigation of claims dependent on matters dehors the direct record. Suchinvestigations are vital to a defendant's claim when the record on direct appeal is inadequate topermit the reviewing court to determine whether there was an error that deprived the defendant ofthe constitutional right to a fair trial. Thus, although there may be some cases in which the trialrecord is sufficient to permit a defendant to bring an ineffective assistance of counsel claim ondirect appeal, in the typical case it would be better, and in some cases essential, that an appellateattack on the effectiveness of counsel be bottomed on an evidentiary exploration by collateral orpost-conviction proceeding brought under CPL 440.10" (People v Maffei, 35 NY3d 264, 269-270 [2020] [internal quotation marks and citations omitted]).
In Maffei, these principles led the Court of Appeals to reject, as unreviewable ondirect appeal, the defendant's claim that his trial counsel had been ineffective in failing tochallenge the seating of a juror. The voir dire record in that case showed that the juror in questionhad stated that he had "[k]ind of made up [his] mind" about the case based on pretrial publicity(Maffei, 35 NY3d at 266, 270). Moreover, the same juror had equivocally answered, "I hope so," whenasked by the court whether he could consider the evidence fairly and impartially (Maffei, 35 NY3d at 267, 270-273). Nonetheless, the Court of Appeals held that the Maffeidefendant's ineffectiveness claim could be asserted only through a CPL 440.10 motion.
In this case, the premise of defendant's ineffectiveness claim is that his trial counsel failed toadvise him, as required by Padilla v Kentucky (559 US 356 [2010]), that the plea dealthat the People were offering him (and that he ultimately accepted) would subject him tomandatory deportation under federal law. As evidence of this alleged ineffectiveness, defendantpoints only to his counsel's representations to the court at the plea hearing that he had reviewedwith defendant "all possible consequences" of the plea for defendant's immigration status andthat "[w]e've looked into everything" in that regard. Obviously, these statements do not discloseor describe the advice that defendant actually received. Rather, the claim seems to be that thereference to "all possible consequences" of the plea was inconsistent with the fact that a plea ofguilty to the offense to which defendant allocuted (which federal immigration law classifies as anaggravated felony) ostensibly would render him subject to mandatory deportation.[FN1] Based on this logic, defendantargues that, to establish a Padilla violation, he need not make a CPL 440.10 motionsupported by direct evidence of the immigration advice he received. We are not persuaded by thisargument.
"Where a defendant's complaint about counsel is predicated on factors such as counsel'sstrategy, advice or preparation that do not appear on the face of the record, the defendantmust raise his or her claim via a CPL 440.10 motion" (People v Peque, 22 NY3d 168, 202 [2013] [emphasis added]). Thisprinciple fully applies to claims of ineffectiveness based on alleged Padilla violations, asillustrated by the Court of Appeals' rejection of the defendant's attempt to raise a Padillaclaim on direct appeal in Peque (see id. ["it was incumbent on defendant tosubstantiate his allegations about counsel's (immigration) advice below by filing a CPL 440.10motion, and his failure to file a postjudgment motion renders his claim unreviewable"]; see also People v Haffiz, 19 NY3d883, 885 [2012]).
We do not agree with defendant's attempt to exempt himself from the necessity of making aCPL 440.10 motion based on his counsel's statements at the plea hearing concerning theoff-the-record advice concerning immigration that had been rendered. To reiterate, counsel'sstatements to the court, on their face, are general in nature and do not purport to describe thecontents of the immigration advice that defendant actually received. The statement that defendanthad been advised of "all possible consequences" was consistent both with accurate advice that theplea would subject him to mandatory deportation and with inaccurate advice that failed to warnhim of that consequence. We cannot, on this record, tell whether the advice actually given wasaccurate or inaccurate. Certainly, it cannot be said that counsel's statement establishes"irrefutably" (McLean, 15 NY3d at 121) that the advice given was inaccurate, as isrequired to render a CPL 440.10 motion unnecessary. If the requirement of such a motion wereso easily avoided, the troubling on-the-record answers of the juror in Maffei surely wouldhave sufficed to establish ineffectiveness; yet the Court of Appeals held otherwise. The sameresult is required here.[FN2]
As defendant does not raise any issues reviewable on direct appeal, we affirm the conviction.Concur—Friedman, J.P., Webber and Oing, JJ.
Gische, J., and Gesmer, J., dissent in a memorandum by Gesmer, J., as follows: I respectfullydissent. Our precedents require that we reverse, hold defendant's conviction in abeyance, andremit the matter to allow defendant the opportunity to move to vacate his plea upon a showingthat there is a reasonable probability that he would not have pleaded guilty had counsel made himaware of the deportation consequences of his plea (People v Disla, 173 AD3d 555 [1st Dept 2019]; People v Johnson, 177 AD3d 484[1st Dept 2019]; People v Johnson,165 AD3d 556 [1st Dept 2018]; People v Rodriguez, 165 AD3d 546 [1st Dept 2018]; People v Pequero, 158 AD3d 421[1st Dept 2018]; People v Doumbia,153 AD3d 1139 [1st Dept 2017]).
At issue is whether the existing record sufficiently demonstrates that defendant was deprivedof ineffective assistance of counsel. At defendant's plea hearing, the following colloquy tookplace:
"THE COURT: I'm also obligated to explain to you that, if you're not a US citizen, you couldsubject yourself to the following set of circumstances: You could be subject to deportation justbecause you're not a US citizen, you could lose your right to receive naturalization papers and or,if you were to leave the Country, you could be denied reentry, do you understand what the Courtis saying?
"THE DEFENDANT: Yes.
"THE COURT: [Counsel], do we have any Padilla issues here?
"THE [COUNSEL]: I believe—I've spoken to for [sic] [defendant] about all possibleconsequences.
"THE COURT: Possible consequences?
"THE [COUNSEL]: Yes.
"THE COURT: The Court is prepared to give you more time to research on the outcomehere, if you want more time.
"THE [COUNSEL]: We've looked into everything, Your Honor. Thank you.
"THE COURT: All right. You want to continue with this guilty plea colloquy?
"THE [COUNSEL]: Yes."
Defendant then pleaded guilty to attempted criminal possession of a weapon in the seconddegree (Penal Law §§ 110.00, 265.03 [3]), which is considered an "aggravatedfelony" for immigration purposes (see 8 USC § 1101 [a] [43] [E] [ii]; 18USC § 922 [g] [5] [A]). This subjected defendant, a non-U.S. citizen, to mandatorydeportation (8 USC § 1227 [a] [2] [A] [iii]; see also People v Corporan, 135 AD3d 485, 485 [1st Dept 2016] [a"plea of guilty to an aggravated felony trigger(s) mandatory deportation under federal law"]). Hewas also subjected to mandatory immigration detention and mandatory elimination of certainimmigration defenses (8 USC §§ 1226 [c] [1] [B]; 1229b [b] [1] [B],[C]).
Thus, under federal law, by pleading guilty, defendant subjected himself to the virtualcertainty of mandatory deportation (seePeople v Peque, 22 NY3d 168, 191 [2013] ["deportation is a virtually automatic resultof a New York felony conviction for nearly every noncitizen defendant"]).[FN1] Consequently, defendant'scounsel was obligated to inform him of the clear immigration consequences of his guilty plea(see Padilla v Kentucky, 559 US 356, 369 [2010] ["when the deportation consequence istruly clear . . . , the duty to give correct advice is equally clear"]).
We have consistently held that counsel's representations to the court about counsel'simmigration advice to his or her client provides a sufficient basis to determine if that advice iscorrect (People v Disla, 173 AD3d at 556; People v Johnson, 177 AD3d at485; People v Johnson, 165 AD3d at 557; People v Rodriguez, 165 AD3d at 546;People v Pequero, 158 AD3d at 422; People v Doumbia, 153 AD3d at 1139). Wehave further repeatedly held that immigration advice that speaks in terms of possibilities whendeportation is a virtual certainty is misadvice supporting an ineffective assistance of counselfinding (People v Disla, 173 AD3d at 556; People v Johnson, 177 AD3d at485; People v Johnson, 165 AD3d at 557; People v Rodriguez, 165 AD3d at 546;People v Pequero, 158 AD3d at 422; People v Doumbia, 153 AD3d at 1139).
In this case, the immigration consequences that faced defendant as a result of his guilty pleawere not "possible" but virtually certain. Therefore, counsel's statement that he described todefendant "all possible consequences" makes clear that he inaccurately conveyed to defendant theimmigration consequences of his plea.[FN2] In fact, had counsel properly "looked intoeverything," as he claimed he had done, he would have represented to the court that he adviseddefendant that he faced mandatory deportation, not "all possible consequences," by pleadingguilty. Thus, counsel's on-the-record error "irrefutably" demonstrates that his services wereineffective (People v McLean, 15NY3d 117, 121 [2010]). To find otherwise is to cast aside this Court's own precedent.
The cases cited by the majority are distinguishable and do not support the majority'sargument. In People v Maffei (35 NY3d 264 [2020]), the defendant sought review on direct appeal of his claim that his counsel wasineffective for failing to challenge the seating of an allegedly biased juror. The Court held thatthe defendant could not sustain his burden based on the voir dire record alone because it did notreveal the reasons for counsel's decisions, which could "be based on a myriad of factors" outsidethe record (Maffei, 35 NY3d at 270), such as "additional statements [made] by the prospective juror"(Maffei, 35 NY3d at 271), or "what was said between defendant and his counsel or how that conversationmay have affected counsel's impression of [the] prospective juror" (Maffei, 35 NY3d at 272). Thus, the Court held that an "evidentiary exploration" is "especially"appropriate where effectiveness of counsel is based on the defense's acceptance of a prospectivejuror (Maffei, 35 NY3d at 270). In contrast, the instant appeal involves a relatively straightforward analysis ofan ineffective assistance claim based on a Padilla violation, which turns on a singlequestion: did counsel provide clear and accurate advice to defendant regarding his immigrationconsequences? The record irrefutably demonstrates that he did not, and there are no other mattersoutside the record that need be examined.
The majority's citation to People vPeque (22 NY3d 168 [2013]) is equally irrelevant. The majority cited to that portion ofthe opinion in which the Court of Appeals held that defendant Peque could only raiseineffectiveness of counsel by means of a 440 motion because statements made by his counsel onthe record at sentencing directly contradicted defendant's complaints about counsel'sperformance. Therefore, defendant's claim required a factual hearing. In the case at bar, nothingin the sentencing record contradicts defendant's claim that his counsel was ineffective.Accordingly, the majority's reliance on that case is inapposite.
Finally, the majority fails to explain why the case before us is not governed by the manyprevious cases from this Court in which we held that we can review and grant an ineffectiveassistance claim when counsel represented to the plea or sentencing court that he or she advisedthe defendant as to the possible immigration consequences of the plea when, in fact, thedefendant faced mandatory deportation (People v Disla, 173 AD3d at 556; People vJohnson, 177 AD3d at 485; People v Johnson, 165 AD3d at 557; People vRodriguez, 165 AD3d at 546; People v Pequero, 158 AD3d at 422; People vDoumbia, 153 AD3d at 1139).
Accordingly, I would reverse, because the record makes irrefutably clear that counsel failedto convey to defendant that his deportation was mandatory.
Footnote 1:It bears noting that defendant'splea would not have barred him from seeking to avoid deportation on certain grounds. Under 8USC § 1231 (b) (3) (A), removal of a non-citizen may be restricted if his or her "lifeor freedom would be threatened in [his or her] country [of origin] because of . . .race, religion, nationality, membership in a particular social group, or political opinion." In ourcase, defendant's plea to an aggravated felony is not a bar to this form of discretionary relief,because he was sentenced to less than 5 years in prison (see 8 USC § 1231[b] [3] [B] [providing that a non-citizen's conviction of an aggravated felony for which the termof imprisonment is at least five years is statutorily ineligible for withholding of removal]). Inaddition, a non-citizen may apply for relief under the Convention Against Torture (CAT) (8 CFR1208.16 [CAT withholding]; 1208.17 [CAT deferral]), which is available regardless of whethersuch applicant has been convicted of an aggravated felony (see Moncrieffe v Holder, 569US 184, 187-188 n 1 [2013] ["the Attorney General has no discretion to deny relief to anoncitizen who establishes his eligibility (under the CAT). A conviction of an aggravated felonyhas no effect on CAT eligibility"]). The present record does not disclose whether defendantwould have qualified for relief under either of these provisions. These potential avenues of relief,while they certainly would not excuse counsel from advising defendant of the "mandatory"deportation that would likely result from the plea, may well indicate what counsel had in mindwhen he referred in the plural to the plea's "possible consequences."
Footnote 2:We are bound by the Court ofAppeals' holding that an ineffectiveness claim is reviewable upon direct appeal only where theexisting record establishes the claim "irrefutably" (McLean, 15 NY3d at 121), regardlessof any inconsistency with this principle that may appear in the decisions of this Court upon whichthe dissent relies. We are not persuaded by the dissent's efforts to distinguish two of the Court ofAppeals decisions (Maffei and Peque) on which we rely. The basis on which thedissent seeks to distinguish each of those decisions is that here, counsel's on-the-recordstatements to the court "irrefutably demonstrate[ ]" that counsel gave defendant inaccurate adviceabout the consequences of the plea. For the reasons already discussed, those statements do not, inour view, demonstrate—irrefutably or otherwise—that counsel gave defendantineffective preplea advice.
Footnote 1:In addition, because of his"aggravated felony" conviction, defendant is ineligible both for asylum (8 USC§ 1158 [b] [2] [B] [i]) and cancellation of his removal by the Attorney General (8USC § 1229b [b] [1] [C]).
Footnote 2:The majority states in a footnotethat defendant's plea might not bar him from pursuing certain narrow grounds for deportationrelief. We agree. However, our precedent does not turn on there being absolute certainty thatdefendant will be deported, but rather whether the deportation is "mandatory" (People vDisla, 173 AD3d at 556; People v Johnson, 177 AD3d at 485; People vJohnson, 165 AD3d at 557; People v Rodriguez, 165 AD3d at 546; People vPequero, 158 AD3d at 422) or a "virtual certainty" (People v Doumbia, 153 AD3d at1140). Where a defendant is subject to mandatory deportation, if "defense counsel only ha[d] aduty to inform a noncitizen that there is a risk or possibility that he or she may be deported[,][s]uch a standard would not only seriously undermine the Sixth Amendment protection to whichnoncitizen defendants are entitled, but would also conflict with the concept of a truly informedplea agreement" (People v Doumbia, 153 AD3d at 1140, citing Padilla, 559 US at373-374).