People v. Floyd F.

• Decision Date: 13 April 2012
• Docket Number: No. 94K053487.,94K053487.
• Citation: 953 N.Y.S.2d 552,35 Misc.3d 1215,2012 N.Y. Slip Op. 50713
• Parties: PEOPLE of the State of New York v. FLOYD F., Defendant(s).
• Court: New York Criminal Court

35 Misc.3d 1215

953 N.Y.S.2d 552

2012 N.Y. Slip Op. 50713

PEOPLE of the State of New York

v.FLOYD F., Defendant(s).

No. 94K053487.

Criminal Court, City of New York, Kings County.

April 13, 2012.

Renee R. Russell for the Defendant on the motion.

Jill Oziemblewski for the People in opposition to the motion.

ROBERT D. KALISH, J.

Upon the submitted papers, the Defendant, Floyd F.'s motion pursuant to CPL § 440.10 to vacate his plea of guilty to Penal Law § 130.55–Sexual Abuse in the Third Degree (Class B Misdemeanor) taken on November 10, 1994 and the judgment of conviction rendered against him on January 12, 1995 based upon said plea, is hereby denied without a hearing as follows:

Parties' Arguments

Defendant's Moving Papers

In the instant motion, Defendant requests the following relief: (1) the vacatur of the judgment of conviction based upon ineffective assistance of counsel, (2) the vacatur of the judgment of conviction on due process grounds because the Defendant's guilty plea was not knowingly, intelligently and voluntarily entered, and (3) for such other and further relief that this Court may deem just and proper.¹

The Defendant states in his affidavit that prior to pleading guilty to Penal Law § 130.55–Sexual Abuse in the Third Degree on November 10, 1994, Defendant's counsel at the time never informed the Defendant as to the potential immigration consequences of taking said plea. The Defendant indicates that had said counsel informed him of the immigration consequences, that the Defendant would not have taken the plea and would have chosen to go to trial.

The Defendant states in his affidavit that he was born in Jamaica in 1973 and has been a lawful permanent resident of the United States since 1991. The Defendant further indicates that he has been married to a United States citizen since 2003 and has three children, all of whom are United States citizens. The Defendant indicates that he previously applied for full citizenship in 1995 [sic 1997] and was denied. The Defendant affirms that in 2011 he consulted with his “immigration attorney” to renew his application for United States citizenship and was informed by his “immigration attorney” that his conviction of Penal Law § 130.55 in 1994 made him “inadmissible” and subject to deportation. The Defendant finally states in his affidavit that his prior defense counsel did not inform him of any immigration consequences prior to his pleading guilty to Penal Law § 130.55, and therefore the Defendant was denied effective assistance of counsel.

Defendant's Counsel makes the following affirmations in support of the motion. Initially, Counsel indicates that she was unable to recover the court file or minutes from the Defendant's plea taken on November 10, 1994 and that her affirmation is based upon her conversations with the Defendant and her examination of the certificate of disposition as to the Defendant's conviction of Penal Law § 130.55 on January 12, 1995.² Counsel affirms that the Defendant was arrested on August 24, 1994 and subsequently arraigned under docket number 94KN053487 on the charges of Penal Law §§ 130.35–Rape in the First Degree (Class B Felony); 130.65–Sexual Abuse in the First Degree (Class D Felony); and 260.10–Endangering the Welfare of a Child (Class A Misdemeanor). Counsel indicates that on November 10, 1994, the Defendant plead guilty to Penal Law § 130.55 in “Part Jury 1 at the Kings County Criminal Court” and was sentenced on January 12, 1995 to one year of probation. Counsel affirms that the Defendant successfully observed and completed the terms of his probation. Counsel also affirms that the Defendant applied for citizenship in 1995 [sic 1997] and was denied. Counsel further states that in June 2011, the Defendant and Counsel consulted with an “immigration attorney” to assist in the Defendant's re-application for United States citizenship, and was informed by the “immigration attorney” that the Defendant was both ineligible for citizenship and subject to deportation based upon his guilty plea.

Counsel also affirms that the Defendant did inform his prior counsel in 1994 of the Defendant's immigration status as a permanent resident, and that prior counsel never mentioned any immigration consequences to the Defendant prior to the Defendant's guilty plea. Counsel further indicated that prior counsel encouraged the Defendant to plead guilty to Penal Law § 130.55 to resolve the criminal action, and that the Defendant would not have plead to said charge if prior counsel had informed him of the immigration consequences of doing so.

Defendant's Supplemental Papers

Defendant's counsel also submitted supplemental papers to the instant motion wherein Counsel argues that the People's case against the Defendant in the underlying Criminal action was too weak to prevail had it gone to trial. Counsel further reiterates the Defendant's position that he informed his prior counsel of his immigration status and was not advised as to the immigration consequences of his plea.³ The Defendant's supplemental papers include a copy of the Defendant's Application for Naturalization and the Decision dated April 1, 2000 denying said application on the grounds that the Defendant did not meet the “good moral character” requirement of 8 CFR Section 316.10[b], which requires that “during the statutory period” the Defendant not “[c]ommit unlawful acts that adversely reflect upon the applicants moral character” (Decision on Defendant's Application for Naturalization p. 4). The Decision goes on to indicate that the Defendant was arrested on August 24, 1994, plead guilty to Penal Law § 130.55 and that the Defendant's record “fails to establish Good Moral Character and therefore your case is denied”. The Decision further indicates that the denial “is without prejudice to [his] filing an application for citizenship when [he] become[s] eligible under the applicable provisions of the Act.”

Counsel also attaches with the supplemental papers an affirmation by the Defendant's prior attorney of record in the underlying criminal matter. Defendant's prior counsel affirms that he has “no independent recollection of the facts, proceeding plea and/or any attorney client conferences related to the Defendant Floyd F. under Docket Number 94KN053487” (Affirmation of Defendant's prior counsel).

Defendant's prior counsel further states that he has advised the Defendant's current Counsel on the instant motion that as of the date of the affirmation (February 24, 2012) he has not retrieved from storage nor reviewed his files regarding Floyd F. Defendant's prior counsel further indicates that he will retrieve said files from storage and review them if requested to do so by the Court.

People's Opposition

In opposition, the People argue that the instant motion should be summarily denied. The People argue that at the time of the Defendant's plea, November 10, 1994, an attorney's failure to advise a defendant of immigration consequences did not constitute ineffective assistance of counsel. The People argue that the Defendant's reliance on Padilla v. Kentucky (130 S.Ct. 1473 [2010] ) is misplaced since the rule in Padilla v. Kentucky does not apply retroactively to the Defendant's plea, which was taken in 1994. The People further argue that the Defendant's allegation that his defense counsel failed to advise him, resulting in his ineligibility for United State citizenship does not fall within the purview of Padilla v. Kentucky. Specifically, the People argue that the harm that the Supreme Court sought to prevent in Padilla v. Kentucky was specifically related to deportation and does not include the Defendant's ability to become a U.S. citizen. The People argue that “becoming a citizen is a privilege, not an entitlement, and applications for citizenship may be denied for reasons that do not involve criminal convictions (People's Memorandum of Law p. 2).

The People further argue that the Defendant has not satisfied the requirement of proving that prejudice resulted from prior counsel's alleged failure to advise him of immigration consequences. The People argue that there is no reasonable probability that the Defendant's decision to plead guilty would have been different had his attorney told him that conviction could result in his removal from the United States. The People argue that by pleading guilty to a Class B Misdemeanor, the Defendant received a sentence of one-year probation as opposed to the possibility of imprisonment had he been convicted of the top felony charges against him after trial. The People also argue that if the Defendant had been convicted of the top felony charges, said convictions would have still rendered him deportable.

The People further argue that the Defendant's claim should be rejected because it rests solely on his own self-serving allegations of fact, which are based upon the Defendant's dubious recollection of legal advice given to him over seventeen years ago. The People further argue that the Defendant's prior counsel affirmed, that he has no independent recollection as to whether or not he advised the Defendant of his immigration rights prior to the Defendant's plea to Penal Law § 130.55. The People indicate in their affirmation in opposition to the Defendant's motion that they have been informed by the Defendant's prior counsel via telephone conversation that he does not remember his conversations with the Defendant and that he does not now have access to his files as to the underlying criminal case. The Defendant's prior counsel further indicated to the People that it would take considerable time for him to get said files from storage.

The People further argue that although the Defendant alleges that he is presently in danger of being deported, he has not corroborated this allegation with any documentation from the United States Immigration and Customs Enforcement Agency (“ICE”), nor has he cited to the Immigration and Nationality Act (“INA”)...