People v. Dor

• Citation: 505 N.Y.S.2d 317,132 Misc.2d 568
• Parties: The PEOPLE of the State of New York v. Lyonel DOR, a/k/a Lyonel Dors.
• Decision Date: 20 June 1986
• Court: United States State Supreme Court (New York)

Page 317

505 N.Y.S.2d 317

132 Misc.2d 568

The PEOPLE of the State of New York v. Lyonel DOR, a/k/a Lyonel Dors.

Supreme Court, Criminal Term,

Kings County, Part XI.

June 20, 1986.

Elizabeth Holtzman, Dist. Atty., Brooklyn, (Barry Latzer, of counsel), for People.

Galef & Jacobs (Mark Eli Nerenberg, New York City, of counsel), for defendant.

MEMORANDUM

GLORIA COHEN ARONIN, Justice.

This is a motion by the defendant pursuant to New York Criminal Procedure Law Sections 440.10(1)(h), 440.20 and 720.10 to vacate the defendant's plea of guilty, set aside the judgment of conviction and sentence and enter an adjudication of youthful offender status.

FACTS

On September 21, 1978 defendant, then approximately 18 years of age, entered a plea of guilty to Manslaughter in the First Degree before Hon. John R. Starkey, now retired. On November 17, 1978 he was sentenced to a minimum of five and a maximum of 15 years in state prison. The sentence was appealed to the Appellate Division, Second Department on the grounds of excessiveness. The Appellate Division affirmed without opinion on June 11, 1979, 417 N.Y.S.2d 154. Defendant was released on parole on June 20, 1984. Since that time he has been detained in the Immigration and Naturalization Processing Center detention facilities, pending deportation.

Defendant was ordered deported under Section 8 U.S.C. § 1251(a)(1) because of his illegal entry into the United States. After various immigration proceedings and appeals, the Board of Immigration Appeals has agreed to leave the appeal open, pending the determination of this motion.

A defense to a deportation under this section is that the alien's life or freedom would be threatened if he returned to his native country. 8 U.S.C. § 1253(h)(1). However, this defense is rendered useless if the alien was convicted of a serious crime and constitutes a danger to the community. 8 U.S.C. § 1253(h)(2)(B). Thus, since the above are issues in the open appeal, this motion is not moot although the defendant has served his term and has been released on parole.

The basis of this motion is that the defendant was never informed of any possible immigration consequences of his plea and received ineffective assistance of counsel. Defendant had been charged with murdering his aunt and because of mitigating circumstances, to wit: his age and abusive treatment by his aunt, was permitted to take a plea to a lesser count, Manslaughter in the First Degree. If convicted of murder, he would have faced a sentence of 15 years to life. The prosecution appeared to have a strong case at that time, based partly on the defendant's confession.

LAW

Although the appeal of defendant's sentence precluded any further attacks on the plea, judgment and sentence as to any issues that were raised or could have been raised in the appeal, People v. Foley, 96 A.D.2d 866, 465 N.Y.S.2d 754 [2d Dep't., 1983], this does not bar a collateral attack based on ineffective assistance of counsel, People v. Welch, 108 A.D.2d 1020, 485 N.Y.S.2d 590 [3d Dep't., 1985]; see People v. Batts, 96 A.D.2d 842, 465 N.Y.S.2d 600 [2d Dep't., 1983], an issue that could not possibly be raised in an appeal by the same counsel. Thus, defendant is precluded from raising any other issues, but properly brings this 440 motion on the grounds of ineffective assistance of counsel. People v. Ramos, 63 N.Y.2d 640, 479 N.Y.S.2d 510, 468 N.E.2d 692 [1984]; People v. Roberts, 89 A.D.2d 912, 453 N.Y.S.2d 727 [2d Dep't., 1982].

In any event, the court finds that defendant was not denied due process of law in his plea. A review of the allocution indicates that the plea was voluntary and intelligent. Defendant was represented by counsel and was informed of his rights. The court was under no obligation to inform the defendant of any possible collateral consequences of his plea. People v. Towles, 110 A.D.2d 729, 488 N.Y.S.2d 41 [2d Dep't., 1985; People v. Sirianni, 89 A.D.2d 775, 453 N.Y.S.2d 485 [4th Dep't., 1982].

The movant contends that defendant received ineffective assistance of counsel because counsel failed to ask for a recommendation against deportation, because counsel failed to request a certificate of relief from civil disabilities and because counsel failed to inform the defendant of possible immigration consequences of his plea. The New York State courts have held that a defendant is entitled to "reasonable competence" and "meaningful representation" by counsel, not "perfect representation" People v. Modica, 64 N.Y.2d 828, 486 N.Y.S.2d 931, 476 N.E.2d 330 [1985]; People v. Baldi, 54 N.Y.2d 137, 146, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981]; and the guidelines are applied on a case by case basis. The United States Supreme Court has held that a guilty plea cannot be attacked on the basis of inadequate legal advice unless counsel was not a reasonably competent attorney and the advice was not "within the range of competence demanded of attorneys in criminal cases." Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674, 693 [1984].

While the court can make a recommendation against deportation at the time of sentencing or within 30 days thereafter, 8 U.S.C. § 1251(b)(2), such a recommendation is only effective when the alien is being deported under Section 8 U.S.C. § 1251(a)(4), i.e. on the basis of being convicted of a crime involving moral turpitude within five years of entry into this country, and not when deportation is under Section 8 U.S.C. § 1251(a)(1), i.e. that the alien at the time of entry was within one or more of the classes of aliens excludable by the law existing at such time of entry. In this case Mr. Dor's deportation was ordered on the latter ground and a recommendation against deportation would have been meaningless. Even if it had any meaning, such failure to request would not constitute ineffective assistance of counsel under the standards above described.

Likewise, a failure to request a certificate of relief from civil disabilities did not constitute ineffective assistance. The courts of this state may not issue a certificate of relief from civil disabilities when the defendant is sentenced to a period of incarceration under the jurisdiction of the New York State Department of Correctional Services (state time). N.Y. Correction Law § 702(1). Thus, since the defendant was sentenced to 5 to 15 years in state prison, a request for such a certificate would have been futile.

In any event, a certificate of relief from disabilities does not bind any judicial, administrative or other body from relying upon the conviction. N.Y. Correction Law § 701(3). Thus, whether or not the defendant had a certificate does not...