People v. Cristache

• Decision Date: 13 September 2010
• Citation: 29 Misc.3d 720,907 N.Y.S.2d 833
• Parties: The PEOPLE of the State of New York v. Constantine CRISTACHE, Defendant.
• Court: New York Criminal Court

907 N.Y.S.2d 833
29 Misc.3d 720

The PEOPLE of the State of New York
v.
Constantine CRISTACHE, Defendant.

Criminal Court, City of New York,
Queens County.

Sept. 13, 2010.

907 N.Y.S.2d 834

Zamir Iosepovici, Esq., for defendant.

Richard A. Brown, District Attorney, County of Queens (Daniel Bresnahan, of Counsel), for plaintiff.

JOSEPH A. ZAYAS, J.

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Defendant moves pursuant to Criminal Procedure Law § 440.10(h) to vacate the judgments of conviction in six cases, arguing that his prior plea attorney failed to provide effective assistance of counsel during and prior to his guilty pleas in the Queens Misdemeanor Treatment Court (QMTC). Defendant, who is currently facing

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removal proceedings initiated by the United States Department of Homeland Security, claims that he advised his plea attorney that he was not a citizen but a lawful permanent resident, and that his plea attorney failed to advise him regarding the immigration consequences of his guilty pleas. Defendant, who was required to complete drug treatment as a condition of his pleas, also alleges that had plea counsel correctly advised defendant regarding the immigration consequences of his pleas, he would not have pled guilty and would have proceeded to trial on his six cases.

Soon after defendant filed his motion, the United States Supreme Court decided Padilla v. Kentucky, 559 U.S. ----, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), which held that counsel for criminal defendants are constitutionally obligated to advise their non-citizen clients regarding the adverse immigration consequences of their guilty pleas.

Defendant's motion to vacate raises important questions regarding, inter alia, the scope of defense counsel's Padilla-imposed duty to provide immigration advice to non-citizen defendants charged with removable/deportable offenses, particularly where, as here, such defendants enter drug treatment in exchange for a promise that the underlying pleas would be

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vacated and the charges dismissed.¹ The motion to vacate also raises important questions regarding the scope of the Court's review in determining whether there is a reasonable probability that defendant would have insisted on going to trial had he been properly advised as to the immigration consequences of his guilty pleas.

Defendant's Guilty Pleas in the Queens Misdemeanor Treatment Court

Defendant was arrested a total of six times over a nine month period in 2009. Initially, defendant had three open cases referred to the QMTC. The charges in those cases included Criminal Possession of Stolen Property in the Fifth Degree (PL § 165.40) (two counts), Criminal Possession of a Controlled Substance in the Seventh Degree (PL § 220.03), Assault in the Third Degree (PL § 120.00), Petit Larceny (PL § 155.25) and Harassment in the Second Degree (PL § 240.26). These cases were referred to the QMTC after the People offered a plea disposition which would have required defendant to plead guilty to an unspecified class A misdemeanor with a sentence of three years' probation on one case; an unspecified B misdemeanor with a sentence of a conditional discharge and either five days of community service or a $250 fine on another case; and a violation, Disorderly Conduct (PL § 240.20), with a sentence of a conditional discharge.

On July 27, 2010, defendant was assessed by a QMTC case-manager, who, based upon defendant's heroin addiction and a 15-year history of drug abuse, recommended that defendant enter a drug detoxification unit and a 28-day drug rehabilitation unit, followed by a 9-month residential drug treatment program. Defendant indicated that he was in agreement with the treatment plan.

Defendant then pled guilty to Criminal Possession of Stolen Property in the Fifth Degree, Criminal Possession of a Controlled Substance in the Seventh Degree, and Assault in the Third Degree. Pursuant to a written plea agreement, the Court would vacate defendant's pleas and dismiss

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and seal each of the cases if defendant completed the drug treatment program. The plea agreement also provided that, should defendant fail to complete the program, the Court would sentence defendant to four months'

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incarceration. During the plea allocution, defendant indicated that he understood the provisions of the plea agreement. The cases were adjourned for an update on defendant's progress in treatment.

A week after entering treatment, however, defendant absconded from his treatment program and the Court issued a bench warrant. Although defendant subsequently entered several other detoxification programs in early August, he also absconded from each of them within days of entering. Later that same month, defendant was arrested once again, this time charged with Trespass in the Third Degree (PL § 140.10). The defendant was remanded, and the new case and the three cases on which he had already pled guilty, along with another older open case (an unarraigned Desk Appearance Ticket [DAT] charging Criminal Possession of a Controlled Substance in the Seventh Degree) came before the Court.

Although defendant clearly violated the plea agreement by absconding from treatment, the Court, after several adjournments, agreed to grant defendant another opportunity to complete treatment. Accordingly, defendant pled guilty to Criminal Possession of a Controlled Substance in the Seventh Degree on the DAT case and Criminal Trespass in the Third Degree on the newest arrest. Once again, pursuant to the plea agreement, the Court would vacate defendant's pleas and dismiss and seal each of the cases should defendant complete the drug treatment programs. The plea agreement also provided, however, that should defendant fail to complete the program, this time the Court would sentence defendant to two concurrent terms of 90 days' incarceration, consecutive to the four-month jail terms which defendant was facing on his earlier pleas.

Three days after the Court released defendant from jail and sent defendant to a treatment program, he once again absconded from the program. The Court issued another bench warrant. Two weeks later defendant was arrested, once again, and charged with Criminal Trespass in the Third Degree. Defendant was remanded, and the new case, along with the five cases on which defendant had already pled guilty, came before the Court. Defendant admitted that he violated the terms of his plea agreements and the Court imposed three concurrent four-month jail terms on defendant's first three cases, as well as two 90-day jail terms on defendant's fourth and fifth cases to run consecutively to the four month terms. In addition, defendant pled guilty to Criminal Trespass in the Third Degree on the newest

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case and was sentenced to 30 days' jail to run concurrent with the other cases.

Defendant's CPL § 440 Motion to Vacate, The People's Opposition and the Court's Interim Order

Two months after defendant was sentenced, defendant moved to vacate the judgments of conviction pursuant to Criminal Procedure Law § 440.10(h). Defendant also served several post-motion letters, apprising the Court of the Supreme Court's decision in Padilla v. Kentucky, --- U.S. ----, 130 S.Ct. 1473, 176 L.Ed.2d 284,² and replying to the People's Affirmation

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in Opposition. Defendant essentially claims that although he notified his plea counsel that defendant was a lawful permanent resident, defendant's plea attorney failed to advise him regarding the immigration consequences of his guilty pleas-pleas to crimes which, according to defendant, subjects defendant to removal from the United States.

The People opposed defendant's motion to vacate, principally arguing that defendant failed to establish, under the second prong of Strickland's ineffective-assistance-of-counsel test ( Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ), that he was prejudiced by plea counsel's alleged failure to advise defendant of the immigration consequences of his guilty pleas.

The Court issued an interim order on June 2, 2010, granting defendant's motion only to the extent of ordering a hearing ( see CPL § 440.30[5] ).

The CPL § 440 Hearing

The hearing was held on June 23, 2010. The defense called defendant's mother, Elizabeth Cristache, and defendant as witnesses

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. Ms. Cristache testified that she entered the United States with her husband and her son as a Romanian refugee in 1989 and that she does not have any family, property or business connections in Romania. Ms. Cristache was diagnosed with colon and liver cancer in April 2009, which diagnosis she shared with defendant. At the time of the diagnosis, Ms. Cristache was advised by her physician that she had a three-year life expectancy.

Ms. Cristache further testified that just prior to defendant's initial plea on July 27, 2009, she was present when defendant notified his plea counsel outside of the QMTC courtroom that he was not a citizen and possessed a green card. Although Ms. Cristache admitted that she was not present during every conversation between defendant and his plea attorney, Ms. Cristache testified that plea counsel did not advise defendant regarding the immigration consequences of pleading guilty during this meeting on July 27 or other meetings at which she was present. At these meetings, Ms. Cristache urged defendant's plea attorney to get defendant into a drug treatment program because he needed "help." Ms. Cristache also urged her son to go into a drug program.

Defendant, Constantine Cristache, was also called as a witness on his own behalf. Defendant testified that he was born in 1977 in Romania and came to the United States with his mother as a refugee in 1989, and is now a lawful permanent resident, otherwise known as a "green card holder." ³ Defendant confirmed his mother's testimony that he has no home or family in Romania, and that he was aware that his mother was suffering from cancer as early as April...