People v. Burgos

• Decision Date: 02 July 2012
• Parties: The PEOPLE of the State of New York, v. Florentino BURGOS, Defendant.
• Court: New York Supreme Court

37 Misc.3d 394
950 N.Y.S.2d 428
2012 N.Y. Slip Op. 22195

The PEOPLE of the State of New York,
v.
Florentino BURGOS, Defendant.

Supreme Court, New York County, New York.

July 2, 2012.

[950 N.Y.S.2d 432]

Andrew Friedman, Esq., New York City, for Defendant.

Jonathan Shih, Esq., Assistant District Attorney, Office of the Special Narcotics Prosecutor, New York City, for the prosecution.

MARCY L. KAHN, J.

On September 28, 1988, defendant Florentino Burgos was convicted by plea of guilty of attempted criminal sale of a controlled substance in the third degree (PL §§ 110/220.39 [1] ) before another justice of this court. On November 14, 1988, he received the promised sentence of time served and five years' probation. He now moves to vacate his judgment of conviction pursuant to Criminal Procedure Law § 440.10(1)(h) on the ground that he received ineffective assistance of counsel at the time of his plea. Specifically, defendant

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alleges that the failure of his trial counsel to advise him that his conviction would subject him to automatic deportation pursuant to 8 USC § 1227(a)(2)(B)(i) (deportability for controlled substance offenses) violated his right to effective assistance of counsel under Padilla v. Kentucky, 559 U.S. ––––, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). The People oppose the motion.

By order dated September 9, 2011 ( Burgos I ), this court directed that a hearing be held pursuant to CPL § 440.30(5) concerning the factual issues presented by the motion. On December 1, 2011, this court issued a written decision and order explaining its order in Burgos I ( Burgos II ). On January 13 and 20, 2012, and February 17, 2012, this court held that hearing. On April 10, 2012, defendant submitted a written summation of his arguments on this motion (Affirmation of Andrew Friedman, Esquire, dated Apr. 6, 2012 [Closing Summation] ) and, on April 27, 2012, the People submitted their response in opposition (Affirmation of Jonathan Shih, Esquire, dated Apr. 27, 2012 [People's Response to Defendant's Post–Hearing Motion] ). On June 19, 2012, the parties were invited to file supplemental submissions regarding the effect of the recent decision in People v. Picca, 97 A.D.3d 170, 947 N.Y.S.2d 120 (2d Dept.2012), on defendant's current Padilla claim. On June 21, 2012, the People submitted a letter to the court in response to that invitation. This decision and order contains the court's findings of fact and legal conclusions following the hearing and its decision granting the motion.

I. THE HEARING¹

At the hearing, the defense called defendant, who testified on January 13 and 20, 2012, and defendant's plea counsel, Victor Daly–Rivera, Esq., who testified on February 17, 2012. I found both witnesses credible. In defendant's case, I credit him because his criminal prosecution was a unique experience for him, and because he gave a detailed recitation of the facts in support of his claim of actual innocence.² While defendant's testimony was at some points unclear and seemingly internally contradictory, and despite the dearth of significant largely documentary evidence, a coherent and logical narrative nonetheless emerged. In Mr. Daly–Rivera's case, I credit him as an officer of the court and because of his years of experience in criminal law. He lacked any specific memory either of the case or of his representation of defendant, however.

II. FINDINGS OF FACTA. Defendant's Immigration History

The following facts emerge from defendant's testimony at the hearing. Defendant Burgos was born in 1964 and grew up in the Dominican Republic in “a very poor family ... liv[ing] all together in a very small [one-room] house....” (Tr., Jan. 13, 2012, at 8). In 1984, he left the Dominican Republic, traveling by airplane to Mexico. Once there, he hired a driver to take him through the mountains and across the United States border to San Antonio, Texas. From Texas, he then boarded a domestic flight to New York City. Thus, he

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entered the United States illegally, without a visa and without inspection or parole by the Immigration and Naturalization Service (INS) or United States customs officials.

In 1984 or 1985, defendant married his first wife, who was then a United States citizen. He then learned that he was eligible for an adjustment of his immigration status to that of a lawful permanent resident (LPR) based upon his marriage to a United States citizen. ( Id., at 56). ( See8 USC § 1153 [a] [2][A] [providing for allocation of a certain number of immigrant visas to spouses of LPRs] ). Accordingly, he submitted an application to the INS. He then learned from an immigration attorney that in order to further his application to legalize his status, he would have to leave the United States and go to Mexico.

Sometime in 1986, after having waited approximately six months for an appointment to see Mexican immigration authorities, defendant flew from the United States to Mexico. After arriving in Ciudad Juarez, he was interviewed by a Mexican immigration official and obtained a temporary United States visa, which was issued for the purpose of meeting with American immigration officials in this country.

One week later, defendant flew back to the United States. He was processed into the United States by immigration and customs officials, to whom he presented his Dominican passport and the newly obtained visa. He answered their questions, had his passport stamped and received “a little piece of cardboard,” which was inserted into the passport. (Tr., Jan. 20, 2012, at 78).

Upon his return to this country in or about 1986, defendant did not immediately meet with INS officials, however. In the two or three months after his return to the United States, his relationship with his first wife deteriorated, and he learned that the woman who would later become his second wife was pregnant. Given these circumstances, defendant, recognizing that pursuing his application for adjustment of status based on his marriage was untenable and that he had a “responsibility” to the woman who was pregnant with his child ( id., at 69), divorced his first wife and abandoned the application.

On or about June 4, 1987, defendant married his second wife, who was not a United States citizen. In July 1987, Burgos submitted a second application for adjustment of his status to LPR, apparently on the basis that his second wife was an LPR, which application was prepared with the aid of an immigration attorney.

On March 10, 1988, defendant, then 23 years old, was arrested in the instant case. As stated above, on September 28, 1988, he was convicted by his plea of guilty of an attempted drug sale, which was entered in full satisfaction of the indictment, and, on November 14, 1988, he was sentenced as stated above.

In December 1988 or January 1989, defendant visited an immigration attorney's office and was informed that his 1987 application for adjustment of status had been denied for insufficiency of paperwork.

In 1990 or 1991, defendant, together with his second wife, again met with an immigration attorney, who informed him that “because of the problem [he] had,” namely, his drug conviction in the instant case, (Tr., Jan. 13, 2012, at 49–50), he was not eligible for an adjustment of status and “was supposed to be deported.” (Tr., Jan. 20, 2012, at 84). He was also told that he “should not get into any trouble because [he] could be deported and that he should not travel....” (Tr., Jan. 13, 2012, at 49–50).

[950 N.Y.S.2d 435]

More than a year after his meeting with the immigration attorney (Tr., Jan. 20, 2012, at 136–137), defendant, apparently on the advice of his immigration attorney, went to an unspecified location in Long Island City and was told that his paperwork had been moved to 26 Federal Plaza in Manhattan. He was also told that he would be scheduled for an appointment to go to 26 Federal Plaza and notified accordingly, but he never received any such notice.

B. Defendant's Arrest and Pre–Disposition Litigation of the Instant Case

On March 10, 1988, defendant was arrested and charged with one count of criminal sale of a controlled substance in the third degree (PL § 220.39[1] ) and one count of criminal possession of a controlled substance in the third degree (PL § 220.16) for having sold a controlled substance to an undercover officer participating in a buy and bust operation. Specifically, according to the People, defendant approached the undercover officer in the vicinity of 515 West 168th Street in Manhattan and asked the officer what she wanted, and the officer replied, “One,” meaning one tinfoil of cocaine. Defendant then reached into the hole of a wall of a nearby residential building, removed a tinfoil containing cocaine and handed it to the officer in exchange for $50 in United States currency. Defendant was arrested by the back-up team, which recovered two additional tinfoils of cocaine from the hole in the wall. Defendant was arrested within minutes after the transaction and, five minutes after the transaction, the undercover officer conducted a confirmatory identification identifying defendant as the seller. No cocaine or pre-recorded buy money was found on defendant's person. (Tr., Jan. 13, 2012, at 16–17; People's Exh. 3, Organized Crime Control Bureau Buy Report, dated Mar. 10, 1988).

Defendant's account of the facts, as derived from his testimony, is that on the night of his arrest he was sitting at an unattended security guard desk in the lobby of his friend's residential building making a sign for his friend when police arrived and arrested him along with others who were present. (Tr., Jan. 13, 2012, at 15). Once in the car, he encountered another man who had been arrested who told him that the police “are everywhere because they are looking for somebody who looks like you.” ( Id., at 16). Thus, defendant contends that he was mistakenly identified as the perpetrator.

I credit defendant's uncontroverted testimony that he had made his...