People v. Bennett, 2010 NY Slip Op 20194 (N.Y. Dist. Ct. 5/26/2010)
| Decision Date | 26 May 2010 |
| Docket Number | 2005BX032194. |
| Citation | 2010 NY Slip Op 20194 |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff, v. JERMAINE BENNETT, Defendant. |
| Court | New York District Court |
ADA Justin J. Braun, Robert T. Johnson, District Attorney, Bronx County, 198 E 161st Street, Bronx, NY 10451, 718-590-2156, People.
Marisel Rodriguez, Esq., 80 Wall Street, Suite 705, New York, NY 10005, 212-968-8600, Defendant.
On November 24, 2009, the defendant Jermaine Bennett moved to vacate judgment pursuant to CPL § 440.10 (1) (h). The People opposed the motion in an affirmation by Assistant District Attorney Justin J. Braun dated December 16, 2009. Mr. Bennett submitted a reply affirmation by Marisel Rodriguez, Esq. dated December 29, 2009. ADA Braun submitted a supplemental affirmation in opposition dated May 11, 2010, in light of the recent decision by the United States Supreme Court in Padilla v. Kentucky (___ U.S. ___, 130 SCt 1473 [Mar 31, 2010]), which held that advice regarding deportation falls within the ambit of the Sixth Amendment right to counsel.
Facts and arguments
Mr. Bennett was arrested on June 16, 2005 based upon allegations that the police discovered a ziplock bag containing a large quantity of marijuana located below the seat of a car occupied by the defendant. On December 14, 2005, the defendant pleaded guilty to PL § 221.10 (2), criminal possession of marijuana in the fifth degree, in exchange for a conditional discharge and seven days of community service. The defendant did not file a direct appeal of his conviction.
In his affidavit, Mr. Bennett claims that his plea was not voluntary because it was entered into based upon affirmative misrepresentations and omissions of information by his attorney concerning the immigration consequences of the plea. Specifically, the defendant claims that prior to entering his guilty plea, he informed his court-appointed attorney, Jeffrey Pogrow, Esq., that he had a previous violation for marijuana possession and that his mother had filed a petition on his behalf to adjust to permanent lawful residence in the United States. The defendant claims that he asked Attorney Pogrow if a guilty plea to PL § 221.10 (2) would have any immigration consequences. Attorney Pogrow then allegedly responded " [n]o', and then, almost as an afterthought, said that he did not think it would." Mr. Bennett maintains that he believed he was receiving sound advice relating to his immigration case.
On December 14, 2005, Attorney Pogrow indicated on the record in open court that he had informed the defendant of "a possible immigration consequence." The defendant took that to mean that Attorney Pogrow was just letting the court know that they had "talk[ed] about the immigration consequences which... were none."
Mr. Bennett states that since taking the plea, his life, and that of his family's, have been "turned upside down" because he was denied adjustment of status and deemed deportable from the United States based upon the subject conviction. He claims that had he known his guilty plea would have such consequences, he would have gone to trial in this matter.
The People have provided an affidavit by Attorney Pogrow wherein he maintains that he discussed the plea bargain at length with the defendant and informed him that if he pled guilty, "it was possible that he would later face an immigration consequence that could affect his immigration status." Attorney Pogrow maintains that despite such advice, Mr. Bennett chose to take the People's offer in lieu of going to trial.
In opposition to the defendant's motion, the People argue that: [1] Padilla cannot be retroactively applied to final judgments; [2] assuming the factual allegations are true, Attorney Pogrow's advice meets the requirements of the Sixth Amendment; [3] that the defendant has failed to establish prejudice as a result of the alleged ineffective assistance of counsel; and [4] that the instant motion should be denied due to defendant's delay in moving to vacate his conviction.
Before deciding whether to plead guilty, a defendant is entitled to "the effective assistance of competent counsel" (Strickland v. Washington, 466 US 668 [1984]; McMann v. Richardson, 397 US 759 [1970]). The Court of Appeals had previously held that deportation was a collateral consequence, and therefore, the failure of a defendant's attorney to warn him or her of the possibility of deportation as a result of a guilty plea was not grounds for an ineffective assistance of counsel claim (People v. Ford, 86 NY2d 397, 405 [1995]; see also People v. Gravino, ___ NE2d ___, 2010 WL 1849361 [May 11, 2010, Ciparick, J., dissenting]). However, the United States Supreme Court rejected the direct versus collateral distinction with respect to advice concerning deportation, and held that the Sixth Amendment requires criminal defense attorneys to advise their noncitizen clients if there is a risk of deportation as a consequence of a conviction (Padilla, 130 SCt 1473, 1482).1 The People argue that Padilla should not be retroactively applied to the defendant's conviction. Since there is no dispute that Mr. Bennett's conviction became final before Padilla was rendered, the court must decide whether Padilla created a new rule or not. A federal constitutional rule of criminal procedure is applicable to those cases which have become final before it was announced, unless it creates a new rule of law (see Teague v. Lane, 489 US 288, 311 [1989]; People v. Eastman, 85 NY2d 265 [1995]). "Application of constitutional rules not in existence at the time a conviction became final seriously undermines the principle of finality which is essential to the operation of our criminal justice system" (Teague, 489 US 288, 309).
The majority did not expressly state in Padilla that its holding should be applied retroactively to cases on collateral review. Therefore, if Padilla created a "new rule", the rule can only be applied to Mr. Bennett's conviction, which became final well before the Padilla decision was rendered, if the rule falls within one of two narrow exceptions enumerated in Teague (Teague v. Lane, 489 US 288, 307 [1989]). New constitutional rules are applied retroactively if: (1) the new rule places "certain kinds of primary, private individual conduct beyond the power of the criminal law making authority to proscribe;" or (2) the new rule alters a bedrock procedural element of criminal procedure which implicates the fundamental fairness and accuracy of the trial (see Teague, 489 US 288, 311-312, citing Mackey v. United States, 401 US 667, 692 [1971] (Harlan, J ., concurring in part and dissenting in part); People v. Eastman, 85 NY2d 265 [1995]).
However, Padilla did not announce a new constitutional rule, but merely applied the well-settled rule in Strickland to a particular set of facts. (Teague, 489 US 288, 301 [internal citations omitted] [emphasis in original]). "While there can be no dispute that a decision announces a new rule if it expressly overrules a prior decision, it is more difficult ... to determine whether we announce a new rule when a decision extends the reasoning of our prior cases" (Graham v. Collins, 506 US 461, 467 [1993], quoting Saffle v. Parks, 494 US 484, 488 [1990]).
In Padilla, the court did not overrule a clear past precedent. Rather, the court held that Strickland applies to advice concerning deportation, whether mis-advice or no advice at all (see Padilla, 130 SCt 1473 n 12) because deportation was such a devastating result "intimately related to the criminal process" (id. at 1476).
The Supreme Court has held in another case that applying Strickland to a new set of facts did not establish a new rule under Teague. In Williams (529 US 362 [2000]), the court recognized the "inevitable difficulties" that come with "attempting to determine whether a particular decision has really announced a "new" rule at all or whether it has simply applied a well-established constitutional principle to govern a case which is closely analogous to those which have been previously considered in the prior case law'" (529 US 362, 380-381). However, the Williams Court held that merely applying Strickland to a new scenario does not create a new rule, as "it can hardly be said that recognizing the right to effective counsel breaks new ground or imposes a new obligation on the States" (529 US 362, 391). The rationale behind this aspect of the holding in Williams is illustrated by Justice Kennedy's explanation that:
If the rule in question is one which of necessity requires a case-by-case examination of the evidence, then we can tolerate a number of specific applications without saying that those applications themselves create a new rule....
Where the beginning point is a rule of this general application, a rule designed for the specific purpose of evaluating a myriad of factual contexts, it will be the infrequent case that yields a result so novel that it forges a new rule, one not dictated by precedent (Wright v. West, 505 US 277 [1992] [opinion concurring in judgment]).
The rule in Strickland necessarily requires a fact-specific analysis, and Padilla held that Strickland should be applied in the context of advice concerning deportation. Padilla is the type of case that merely extends an existing rule rather than creating a new one. At least one other court has found that Padilla did not create a new rule for retroactivity purposes as well (see U.S. v. Guzman-Garcia, 2010 WL 1791247 [E D Cal 2010] [ that Padilla did not "newly recognize a right upon which defendant may rely to reset the running of the limitations period"])....
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