People v. Ford

• Decision Date: 15 March 1993
• Citation: 157 Misc.2d 668,597 N.Y.S.2d 882
• Parties: PEOPLE of the State of New York, Plaintiff, v. Rudolph FORD, Defendant.
• Court: New York Supreme Court

Page 882

597 N.Y.S.2d 882

157 Misc.2d 668

PEOPLE of the State of New York, Plaintiff, v. Rudolph FORD, Defendant.

Supreme Court, Criminal Term Kings County, Part 9.

March 15, 1993.

David Scheinfeld (Susan Steier, of counsel), New York City, for defendant.

Charles J. Hynes, Dist. Atty., Kings County (Caroline R. Donhauser, of counsel), Brooklyn, for plaintiff.

ORDER

LEWIS L. DOUGLASS, Justice.

In September of 1990, when the defendant was nineteen, he was showing off his gun to his girlfriend, and believing he had removed all bullets, put the gun to her temple and pulled the trigger. All the bullets were not removed and she died instantly.

The defendant was charged with manslaughter in the second degree, reckless manslaughter. He pled guilty to the charge and was sentenced to two to six years.

The defendant was born in Jamaica and is a lawful permanent resident. When he applied to the Parole Board, he was released on the first eligible date, but because of his immigration status, the United States Immigration Service initiated proceedings to deport the defendant on the grounds that reckless manslaughter is a crime involving moral turpitude. He is now being held in a deportation center in Louisiana.

The defendant, wishing to avoid deportation, now asks this court to vacate the plea to reckless manslaughter and enter a plea to criminally negligent homicide. He argues that when the plea was entered none of the parties including the District Attorney, his lawyer nor the judge ever contemplated that the episode involved the kind of moral turpitude that would result in his deportation.

The District Attorney first argues that the parties must have known of the possibility of deportation, and since the fact that the defendant was an immigrant was contained in the probation report. But none of the parties could have believed that this was an intentional act involving moral turpitude, since no judge and certainly no District Attorney would agree to a two to six year sentence for a killing that was either intentional or the result of depraved behavior. Not only is it obvious from the two to six year disposition that the shooting was accidental, but the victim's mother submits an affidavit in support of his application by the defendant, in which she agrees that the shooting was accidental. Therefore, this analysis assumes that all parties viewed this as a tragic accident that required punishment of two years in prison, but the parties never contemplated that the act involved moral turpitude or that the plea would lead to the defendant's deportation. On that assumption the question becomes, what is the consequence of the failure to tell a nineteen year old who accidentally shoots his girlfriend that a plea to manslaughter, as opposed to the lesser included plea of criminally negligent homicide, would result in his deportation.

The District Attorney then argues that appellate cases have uniformly held that the possibility of deportation is a collateral issue and therefore, if the plea is otherwise sufficient, the possibility of deportation is not grounds to disturb the plea. Our law, however, is not simply a collection of rules, but rather the rules are read against the factual background which gave rise to those rules. The factual content of all of those cases which hold that the failure to tell a defendant of the possibility of deportation is collateral and therefore, not a ground to disturb the plea are distinguishable from this case, in that all of those cases involved episodes where the defendant intentionally violated the law or where the acts were intrinsically immoral. People v. Avila, 177 A.D.2d 426, 576 N.Y.S.2d 534, involved the sale of drugs. People v. Dor, 132 Misc.2d 568, 505 N.Y.S.2d 317, involved manslaughter, that is the intentional infliction of injury. U.S. v. Parrino, 212 F.2d 919, involved conspiracy to kidnap. U.S. v. Russell, 686 F.2d 35, U.S. v. Gavilan, 761 F.2d 226 involved the intentional distribution of drugs. In these situations a defendant would have had the reasonable expectation that since the episode to which he pled involved the intentional breaking of the law or an act universally recognized as involving intrinsic immorality that serious consequences might flow from the plea.

But here the challenge is to determine what principle is to be applied to an episode which was not intentional and did not involve moral turpitude. Guidance can be found in those cases which describe the...