People v. Gomez

• Decision Date: 13 August 2020
• Docket Number: Ind. 158/15 ,11570
• Citation: 129 N.Y.S.3d 60,186 A.D.3d 422
• Parties: The PEOPLE of the State of New York, Respondent, v. German GOMEZ, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

186 A.D.3d 422
129 N.Y.S.3d 60

The PEOPLE of the State of New York, Respondent,
v.
German GOMEZ, Defendant–Appellant.

11570
Ind. 158/15

Supreme Court, Appellate Division, First Department, New York.

ENTERED AUGUST 13, 2020

129 N.Y.S.3d 61

Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Christopher Michael Pederson of counsel), for respondent.

Friedman, J.P., Gische, Webber, Gesmer, Oing, JJ.

186 A.D.3d 422

Judgment, Supreme Court, Bronx County (Raymond L. Bruce, J.), rendered October 3, 2016, convicting defendant,

186 A.D.3d 423

upon his plea of guilty, of attempted criminal possession of a weapon in the second degree, and sentencing him to a term of two years, affirmed.

Defendant's claim of ineffective assistance of counsel is not reviewable on direct appeal, because the existing record does not make "irrefutably" clear "that a right to counsel violation has occurred" ( People v. McLean, 15 N.Y.3d 117, 121, 905 N.Y.S.2d 536, 931 N.E.2d 520 [2010] ). Specifically, the existing record does not reveal the advice concerning the immigration consequences of the plea that defendant actually received from his trial counsel. Rather, the record reflects only counsel's representation to the court that he had discussed all "possible consequences" with defendant, counsel's refusal of the court's offer of additional time to research the plea's immigration consequences, and counsel's assurance to the court that "[w]e've looked into everything." Without further development of the record by way of a CPL 440.10 motion, it cannot be determined exactly what discussions were had with defendant regarding the immigration consequences of his plea, including whether counsel mis-advised defendant.

Contrary to defendant's argument, his trial counsel's general representations to the court that defendant had been advised of "all possible consequences" of the plea and that "[w]e've looked into everything" do not establish, under binding

129 N.Y.S.3d 62

precedent of the Court of Appeals, that counsel failed to advise defendant that he would be subject to mandatory deportation based on this plea. The Court of Appeals has held repeatedly that

"the lack of an adequate record bars review on direct appeal not only where vital evidence is plainly absent ... but wherever the record falls short of establishing conclusively the merit of the defendant's claim.... Thus where the record does not make clear, irrefutably, that a right to counsel violation has occurred, the claimed violation can be reviewed only on a post-trial motion under CPL 440.10, not on direct appeal" ( McLean, 15 N.Y.3d at 121, 905 N.Y.S.2d 536, 931 N.E.2d 520 [emphasis added] ).

Cases in which the record on direct appeal affords irrefutable proof of counsel's ineffectiveness are "exception[al]" ( People v. Nesbitt, 20 N.Y.3d 1080, 1082, 965 N.Y.S.2d 743, 988 N.E.2d 478 [2013] ; see also People v. Bell, 48 N.Y.2d 933, 934, 425 N.Y.S.2d 57, 401 N.E.2d 180 [1979] [the record on direct appeal "establishes beyond peradventure ... clear ineffectiveness of counsel"] ).

Only a few weeks ago, the Court of Appeals, in holding that a CPL 440.10 motion was required to create a record to support the defendant's claim that he had received ineffective assistance of counsel, reiterated the principle that review of an ineffectiveness claim on direct appeal requires a record that

186 A.D.3d 424

establishes an irrefutable basis for the claim:

"Generally, the ineffectiveness of counsel is not demonstrable on the main record but rather requires consideration of factual issues not adequately reflected on that record. By codifying the writ of error coram nobis in CPL article 440, the Legislature crafted a procedure for such scenarios. To that end, article 440 permits defendants to complete the record by putting forth sworn factual allegations in support of a motion to vacate the judgment of conviction and authorizes evidentiary hearings on those motions ( CPL 440.10, 440.30 ), thereby providing a vehicle specifically for the investigation of claims dependent on matters dehors the direct record. Such investigations are vital to a defendant's claim when the record on direct appeal is inadequate to permit the reviewing court to determine whether there was an error that deprived the defendant of the constitutional right to a fair trial. Thus, although there may be some cases in which the trial record is sufficient to permit a defendant to bring an ineffective assistance of counsel claim on direct appeal, in the typical case it would be better, and in some cases essential, that an appellate attack on the effectiveness of counsel be bottomed on an evidentiary exploration by collateral or post-conviction proceeding brought under CPL 440.10" ( People v. Maffei, 35 N.Y.3d 264, 127 N.Y.S.3d 403, 150 N.E.3d 1169, 2020 N.Y. Slip Op. 02680, *3, 2020 WL 2200426 [2020] [citations and internal quotation marks omitted] ).

In Maffei, these principles led the Court of Appeals to reject, as unreviewable on direct appeal, the defendant's claim that his trial counsel had been ineffective in failing to challenge the seating of a juror. The voir dire record in that case showed that the juror in question had stated that he had "[k]ind of made up [his] mind" about the case based on pretrial publicity. Moreover, the same juror had equivocally answered, "I hope so," when asked by the court whether he could consider the evidence fairly and impartially. Nonetheless, the Court of Appeals held that the Maffei defendant's ineffectiveness claim could be asserted only through a CPL 440.10 motion.

129 N.Y.S.3d 63

In this case, the premise of defendant's ineffectiveness claim is that his trial counsel failed to advise him, as required by Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 [2010], that the plea deal that the People were offering him (and that he ultimately accepted) would subject him to mandatory deportation under federal law. As evidence of this alleged ineffectiveness, defendant points only to his counsel's representations to the court at the plea hearing that he had reviewed with defendant "all possible consequences"

186 A.D.3d 425

of the plea for defendant's immigration status and that "[w]e've looked into everything" in that regard. Obviously, these statements do not disclose or describe the advice that defendant actually received. Rather, the claim seems to be that the reference to "all possible consequences" of the plea was inconsistent with the fact that a plea of guilty to the offense to which defendant allocuted (which federal immigration law classifies as an aggravated felony) ostensibly would render him subject to mandatory deportation.¹ Based on this logic, defendant argues that, to establish a Padilla violation, he need not make a CPL 440.10 motion supported by direct evidence of the immigration advice he received. We are not persuaded by this argument.

"Where a defendant's complaint about counsel is predicated on factors such as counsel's strategy, advice or preparation that do not appear on the face of the record, the defendant must raise his or her claim via a CPL 440.10 motion" ( People v. Peque, 22 N.Y.3d 168, 202, 980 N.Y.S.2d 280, 3 N.E.3d 617 [2013] [emphasis added] ). This principle fully applies to claims of ineffectiveness based on alleged Padilla violations, as illustrated by the Court of Appeals' rejection of the defendant's attempt to raise a Padilla claim on direct appeal in Peque (see id. ["it was incumbent on defendant to substantiate his allegations about counsel's (immigration) advice below by filing a CPL 440.10 motion, and his failure to file a postjudgment motion renders his claim unreviewable"]; see also People v. Haffiz, 19 N.Y.3d 883, 885, 951 N.Y.S.2d 690, 976 N.E.2d 216 [2012] ).

186 A.D.3d 426

We do not agree with defendant's attempt to exempt himself from the necessity of making a CPL 440.10 motion based on his counsel's statements at the plea hearing concerning the off-the-record advice concerning immigration that had

129 N.Y.S.3d 64

been rendered. To reiterate, counsel's statements to the court, on their face, are general in nature and do not purport to describe the contents of the immigration advice that defendant actually received. The statement that defendant had been advised of "all possible consequences" was consistent both with accurate advice that the plea would subject him to mandatory deportation and with inaccurate advice that failed to warn him of that consequence. We cannot, on this record, tell whether the advice actually given was accurate or inaccurate. Certainly, it cannot be said that counsel's statement establishes "irrefutably" ( McLean, 15 N.Y.3d at 121, 905 N.Y.S.2d 536, 931 N.E.2d 520 ) that the advice given was inaccurate, as is required to render a...