People v. Cabrera
| Decision Date | 30 July 2014 |
| Docket Number | No. 1339–09.,1339–09. |
| Citation | 999 N.Y.S.2d 798 (Table) |
| Parties | The PEOPLE of the State of New York, v. Blanca CABRERA, Defendant. |
| Court | New York Supreme Court |
Robert S. Dean, Center for Appellate Litigation (Cheryl Andrada of counsel), New York, N.Y., for the Defendant.
Robert Johnson, Bronx County District Attorney (Ravi Kantha of counsel), Bronx, N.Y., for the People.
Before the court is the defendant's CPL § 440.10 motion to vacate her judgment of conviction based on ineffective assistance of counsel. On December 9, 2009, the defendant, Blanca Cabrera, a Mexican citizen, pleaded guilty to one count of Criminal Possession of a Controlled Substance in the Seventh Degree (PL § 220.03), a misdemeanor. The guilty plea rendered the defendant removable under the Immigration and Nationality Act (INA) (8 USCA § 1227 [a] [2] ). Defendant contends that her Sixth Amendment right to effective assistance of counsel was infringed because her defense attorney failed to advise her of the serious immigration consequences of pleading guilty. She argues that, absent such advice, she would not have pleaded guilty. Defendant also contends that since her attorney failed to advise her about the those consequences, the plea cannot be found to have been entered knowingly, intelligently and voluntarily.The People oppose the motion.
For the reasons that follow, the motion to vacate the defendant's judgment of conviction is denied.
Defendant was born in Mexico in 1969, and arrived in the United States in 1990. She remained undocumented until May 14, 2009, when she was granted a “U” visa, which is a non-immigrant visa available for victims of certain crimes who cooperate with law enforcement to prosecute the offense committed against them (see 8 USC 1101 [a][15][U] ). Defendant qualified for the visa based on the domestic violence inflicted upon her by her ex-boyfriend and the father of her son.
On March 6, 2009, the defendant was arrested by New York City corrections officers for attempting to smuggle four latex balloons containing heroin, and two small plastic packages containing marijuana into Rikers Island Correctional Facility. On April 2, 2009, a Bronx County Grand Jury indicted the defendant on one count of Promoting Prison Contraband in the First Degree (PL § 205.25); two counts of Promoting Prison Contraband in the Second Degree (PL § 205.20); one count of Criminal Possession of a Controlled Substance in the Seventh Degree (PL § 220.03); and one count of Unlawful Possession of Marijuana (PL § 221.05). At that time, the defendant was represented by Virginia Cora, Esq. (Cora), of the Legal Aid Society. On December 9, 2009, she pleaded guilty, before this court, to the single count of Criminal Possession of a Controlled Substance in the Seventh Degree (PL § 220.03), in exchange for a promised sentence of three years probation. The court allocated the defendant, in part, as follows:
(affirmation of defendant's counsel, exhibit B, at 4).
When contacted by her current attorney, Cheryl Andrada, Esq., from the Center for Appellate Litigation, her prior attorney, Cora, could not recall speaking to the defendant's immigration attorney from Sanctuary for Families, but she insisted that she advised the defendant that her conviction was a deportable offense. Her Legal Aid case file contains a note dated January 13, 2010, stating that “D[efendant] sentenced to 220.03 w/probation /D[efendant] understands immigration consequences judgment entered indigent” (affirmation of defendant's counsel, exhibit C, Trial Counsel File: Legal Aid Society Appearances Form). Defendant, however, was not sentenced until January 19, 2010. On that date, Justice James Kindler sentenced the defendant to the promised three-year probation sentence. Defendant never filed a notice of appeal. She fulfilled the terms of her sentence (see affirmation of defendant's counsel, ¶ 17), and was discharged from probation supervision on May 11, 2011.
Two years later, on August 14, 2013, the defendant filed her initial CPL § 440.10 motion to vacate her judgment of conviction, arguing that her attorney's erroneous advise about the immigration consequences of her pleading guilty of the criminal charge constituted ineffective assistance of counsel under the Sixth Amendment. On August 29, 2013, a corrected copy of her motion to vacate the judgment of conviction was filed. In her papers, the defendant acknowledges that the United States Immigration and Customs Enforcement has not initiated removal proceedings against her (id., ¶ 6). However, she contends that as her conviction includes allegations of heroin possession, it constitutes a controlled substance offense under federal law, and it is, therefore, a basis for deportation (see 8 USC 1227 [a][2][B][i] ). The conviction not only renders her deportable, but would also bar future admission to the United States (see 8 USC § 1182 [a][2][A][i][II] ). Defendant maintains that she accepted the plea offer because doing so would allow her to avoid incarceration, and remain with her 15–year old son, who she reports has special educational needs.
To support her argument, the defendant relies on Padilla v. Kentucky (559 U.S. 356 [2010] ), which held that defense counsel must inform a client whether a plea carries the risk of deportation. This case was decided three months after the defendant pleaded guilty. Alternatively, she seeks an evidentiary hearing on her motion. The People oppose the motion, and insist that relief cannot be granted under Padilla based on Chaidez v. United States (––– U.S. ––––, 133 S.Ct. 1103, 185 L.Ed.2d 149, 185 L.Ed. 149 [2013] ) and People v. Verdejo (109 A.D.3d 138, 967 N.Y.S.2d 729 [1st Dept 2013] ), both cases holding that the rule in Padilla cannot be applied retroactively.
Before addressing the merits of the CPL § 440.10 motion, the court finds that a hearing on this matter is unnecessary. A hearing is not required when the material in support of the motion, as well as the record in the underlying proceeding, are sufficient for the court to decide the motion (see PL § 440.30 [1]; see also People v. Satterfield, 66 N.Y.2d 796, 799 [1985];People v. Griffin, 24 AD3d 972,974 [3d Dept 2005], lv denied 6 NY3d 82 [2006] ). This court presided, in part, over the prior proceeding, which provides a basis upon which the court can decide the motion without a hearing. As such, this court may be “presumed to be fully familiar with all aspects of the case' “ (People v. Demetsenare, 14 A.D.3d 792, 793, 787 N.Y.S.2d 515 [3d Dept 2005], citing People v. Loomis, 256 A.D.2d 808, 808–809, 683 N.Y.S.2d 306 [3d Dept 1998], lv denied 93 N.Y.2d 854 [1999] ).
Defendant urges the court to apply Padilla retroactively, despite the United States Supreme Court's decision in Chaidez and the First Department's ruling in Verdejo. In particular, she contends that Danforth v. Minnesota (552 U.S. 264, 282 [2008] ), permits the court to continue applying the retroactivity framework from Teague (489 U.S. 288 [1989],reh denied 490 U.S. 1031 [1989] ), but nevertheless reach a divergent conclusion from Chaidez and Verdejo. As raised by the defendant, the questions in this case are whether the court may give broader retroactive effect to Padilla v. Kentucky (559 U.S. 356 [2010] ) as a matter of state law than it would otherwise enjoy under federal law, and, if it can, whether the defendant has a claim for ineffective assistance of counsel that could justify withdrawal of her guilty plea.With those questions in mind, the court turns to three critical cases concerning ineffective assistance of counsel claims in which immigration consequences followed the entry of a guilty plea. The court begins first with Padilla v. Kentucky.
In Padilla, the Kentucky Supreme Court had rejected the petitioner's claim that he had received ineffective assistance of counsel because his defense attorney failed to warn him of the deportation consequences of his guilty plea. The state court reasoned that deportation was not a direct consequence of a plea, but only a collateral consequence. Therefore, the matter was outside the scope of representation required by the Sixth Amendment. The United States Supreme Court reviewed Padilla's claim under its Strickland ineffective assistance of counsel standard,1 and rejected any direct or collateral consequence analysis. The Supreme Court stated that it had “never applied a distinction between direct and collateral consequences to define the scope of constitutionally reasonable professional assistance' required under Strickland ... [and] that distinction ... need not [be] consider[ed] in this case because of the unique nature of deportation” (Padilla, 559 U.S. at 365). The Supreme Court, however, found that counsel's “advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel” and, therefore, defense counsel was required to provide accurate and specific advice regarding immigration consequences following a guilty plea (id. at 366). In applying the first prong of the Strickland test to Padilla's claim, the Supreme Court found that his plea counsel's failure to advise Padilla of the deportation consequences of his plea was unreasonable, and amounted to a constitutionally deficient performance (Padilla, at 368). The Court, however, did not address whether its holding applied retroactively so as to permit defendants whose convictions were already final at the time it issued its opinion to seek relief on this basis in a collateral proceeding.
Thee years later, the Supreme Court in Chaidez v. United States (––– U.S. ––––, 133 S.Ct. 1103, 1105, 185 L.Ed.2d 149 [2013] ) addressed whether Padilla applies to persons whose...
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