People v. Guaman

• Decision Date: 25 January 2016
• Docket Number: 2009NY095002
• Citation: 51 Misc.3d 792,31 N.Y.S.3d 391,2016 N.Y. Slip Op. 26056
• Parties: The PEOPLE of the State of New York v. Sandra GUAMAN, Defendant. The People of the State of New York v. Eliana Matute, Defendant.
• Court: New York Criminal Court

51 Misc.3d 792

31 N.Y.S.3d 391

2016 N.Y. Slip Op. 26056

The PEOPLE of the State of New York

v.Sandra GUAMAN, Defendant.

The People of the State of New York

v.Eliana Matute, Defendant.

2009NY095002

Criminal Court, City of New York, New York County.

Jan. 25, 2016.

E. Abel Arcia, Jackson Heights, for defendant.

Cyrus R. Vance, Jr., District Attorney, New York City, for plaintiff.

LOUIS L. NOCK

, J.

DECISION AND ORDER

The above-captioned matters are consolidated for disposition.

Defendant Sandra Guaman (a/k/a Eliana Matute),¹ moves, pursuant to CPL 440.10

, to vacate the judgments of conviction on her pleas of guilty in these matters; and, pursuant to CPL 440.20

, to set aside her sentences of time served imposed therein. The People oppose. For the reasons set forth below, the motion is denied.

BACKGROUND

Docket No. 2008NY034833

The information charges Defendant with violating PL 275.35, Failure to Disclose the Origin of a Recording in the Second Degree; PL 190.23, False Personation; and 21 NYCRR 1050.7(j)(4)

, Blocking Free Movement in a Transit Facility. On April 24, 2008, Defendant was issued a desk appearance ticket for May 22, 2008, but warranted. Defendant did not appear until December 13, 2009, after she was arrested in connection with Docket No. 2009NY095002, described immediately below. At arraignment on December 13, 2009, Defendant pled guilty to PL 275.35—a class A misdemeanor—in satisfaction of this docket (No. 2008NY034833), receiving a promised sentence of time served.

Docket No. 2009NY095002

Defendant was arrested on December 12, 2009, on a charge of violating PL 165.71, Trademark Counterfeiting in the Third Degree—a class A misdemeanor. She was arraigned on December 13, 2009, and pled guilty, receiving a promised sentence of time served.

The Present Motion

Now—after more than six years have gone by since her foregoing pleas—Defendant seeks to vacate the judgments and set aside the sentences, claiming ineffective assistance of counsel. Without offering any independent evidentiary support whatsoever, and without providing any statement, at all, of any efforts by her to try to secure any such support, Defendant submits her own, uncorroborated, affidavit in which she claims that her plea counsel affirmatively told her that no adverse immigration consequences would attach to the pleas, and that she would not have pleaded guilty if she knew of any such consequences attaching to her pleas (Defendant's Aff. ¶¶ 4, 6). Remarkably (given the asserted basis for this motion), Defendant does not assert that she has suffered any tangible adverse immigration consequence, at all. Rather, all that Defendant appears to be saying is that she is afraid that she may suffer “immigration problems” as a result of her pleas (Defendant's Aff. ¶ 6; see, id. ¶ 5). She attests in her affidavit that the only thing that has transpired is that an unidentified immigration attorney handed her a copy of a USCIS form—unrelated to her personally—which generally informs the public that persons convicted of crimes involving “moral turpitude” may be ineligible for admission and visas (id., ¶ 5, Ex. B). Defendant identifies herself as the “wife of a U.S. citizen” in pursuit of a “green card” (id., ¶¶ 5); however, at no time does Defendant attest to any instance, at all, in which she was denied a green card or suffered any tangible immigration detriment whatsoever. Indeed, she does not even go as far as claiming that she ever even applied for any immigration relief, at all—green card or otherwise. Defendant does not allege that any removal proceedings have been instigated against her.

Notably, Defendant never renounces the guilt to which she allocated in open court on December 13, 2009.

DISCUSSION

“The right to the effective assistance of counsel is guaranteed by both the Federal and State Constitutions” (People v. Baldi, 54 N.Y.2d 137, 146, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981]

). Under the federal standard, Defendant must show that counsel's performance was deficient and that the deficient performance prejudiced the defense (Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ). Under the New York standard, the “defendant must demonstrate that his attorney failed to provide meaningful representation” (People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] [citations omitted] ). Even under the New York standard, lack of prejudice plays a relevant role in the analysis (id., at 155, 800 N.Y.S.2d 70, 833 N.E.2d 213 ).

The Record Refutes Defendant's Unsupported Assertions

“It is well settled that a guilty plea will be upheld if it was entered knowingly, voluntarily and with an understanding of the consequences thereof (see, People v. Moissett, 76 N.Y.2d 909, 910–911, 563 N.Y.S.2d 43, 564 N.E.2d 653

), especially when the defendant makes a complete factual allocution in the presence of counsel and after the trial court apprises the defendant of the consequences of his plea....” (People v. Hanley, 255 A.D.2d 837, 682 N.Y.S.2d 245 [3d Dept.1998]

, lv. denied 92 N.Y.2d 1050, 685 N.Y.S.2d 428, 708 N.E.2d 185 [1999].)

Such are the circumstances in the present case.

The underlying record demonstrates, beyond cavil, that Defendant was expressly informed by the court of the potential for adverse immigration consequences during the plea proceedings in open court on December 13, 2009, prior to her entry of her pleas of guilty (see, People's Ex. A, passim ). Thus, even were we to credit Defendant's unsubstantiated assertion of counsel misinformation prior to the proceedings, there can be no legitimate ground for withdrawal of the pleas in these cases since, at bottom, Defendant was ultimately made fully aware of the potential for adverse immigration consequences prior to her pleas during the proceedings (e.g., Ellington v. United States, 09 Civ 4539[HB], 2010 WL 1631497 [S.D.N.Y. Apr. 20, 2010]

[where the defendant was informed of the immigration consequences of the guilty plea at the plea proceeding, any prior failure by defendant's counsel's to properly inform is of no consequence]; People v. Rampersaud, 121 A.D.3d 721, 993 N.Y.S.2d 364 [2d Dept.2014] [same]; People v. Kidd, 31 Misc.3d 1235(A), 2011 WL 2175915 [Sup.Ct. Westchester County 2011] [same] ).

In addition, Defendant declared in open court during the plea proceeding that she fully discussed the matter with her counsel to her satisfaction (People's Ex. A at 4) (see, People v. Griffin, 89 A.D.3d 1235, 932 N.Y.S.2d 252 [3d Dept.2011]

), and proceeded to proffer a full allocution to the facts of the offenses to which she was pleading guilty (People's Ex. A at 6) (see, Griffin, supra; see also,

People v. Falas, 286 A.D.2d 651, 730 N.Y.S.2d 432 [1st Dept.2001], lv. denied 97 N.Y.2d 728, 740 N.Y.S.2d 701, 767 N.E.2d 158 [2002] ; People v. Rentas, 193 A.D.2d 565, 598 N.Y.S.2d 206 [1st Dept.], lv. denied 82 N.Y.2d 725, 602 N.Y.S.2d 822, 622 N.E.2d 323 [1993] ).

Defendant cannot overcome the presumptive validity of her plea convictions absent substantial evidence to the contrary (People v. Harris, 61 N.Y.2d 9, 471 N.Y.S.2d 61, 459 N.E.2d 170 [1983]

). On the record cited above, Defendant does not remotely approach her burden to overcome such presumption.

Defendant Alleges No Tangible Adverse Consequence of Her Pleas

Defendant does not allege that she has actually suffered any adverse immigration consequence resulting from her plea convictions—green card related, or otherwise. Defendant merely points to a USCIS form given her by an unidentified immigration attorney, unrelated to her personally, informing the public of adverse visa and admission consequences attaching to persons convicted of crimes of moral turpitude.

The referenced USCIS form cites to 8 U.S.C. 1182

, which provides, in pertinent part: “Except as otherwise provided in this chapter, aliens who are inadmissible under the following paragraphs are ineligible to receive visas and ineligible to be admitted to the United States: ... any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of ... a crime involving moral turpitude....” (8 U.S.C. 1182 [a][2][A][i][I].) A diligent search has uncovered no cases in this state or federal jurisdiction in which PL 275.35 (Failure to Disclose the Origin of a Recording in the Second Degree) has been found to constitute a crime of moral turpitude, nor has movant's present counsel directed the court to the existence of any such case. But even with regard to PL 165.71 (Trademark Counterfeiting in the Third Degree), which has been found to involve moral turpitude by the U.S. Board of Immigration Appeals (see, In re Serigne Mbacke Sylla, 2008 WL 4222204 [BIA Aug. 29, 2008]

), Defendant may very well be eligible for the express exception set forth in 8 USCA 1182(a)(2)(A)(ii)(II), which excepts a qualifying crime from adverse immigration consequence if its maximum penalty does not exceed imprisonment for one year and the defendant's sentence for same was not imprisonment in excess of six months. Both of the judgments that Defendant is seeking to vacate are for class A misdemeanors, for which the maximum term of imprisonment is one year (Penal Law 70.15[1] ). Moreover, her sentences for both convictions was time served, far below the six month imprisonment threshold. Accordingly, the convictions at issue may very well not carry any adverse immigration consequence, at all, contrary to Defendant's unrealized fears (see,

People v. Delacruz, 2011 WL 7403312, at *5 [Sup.Ct. Kings County Dec. 5, 2011] [“defendant has not faced immigration consequences. He faces only the possibility of immigration consequences....”] ). Absent any showing by Defendant of any tangible adverse immigration consequence whatsoever, she has failed to meet her burden to overcome the presumptive validity of her guilty pleas.² This is especially so in light of the plea court's explicit and thorough allocution, informing Defendant of the possibility...