People v. De Jesus

• Decision Date: 21 November 2011
• Citation: 34 Misc.3d 748,2011 N.Y. Slip Op. 21414,935 N.Y.S.2d 464
• Parties: The PEOPLE of the State of New York, v. Gleni DE JESUS, f/k/a Altagracia Hernandez, Defendant.
• Court: New York Supreme Court

2011 N.Y. Slip Op. 21414

34 Misc.3d 748

935 N.Y.S.2d 464

The PEOPLE of the State of New York,

v.Gleni DE JESUS, f/k/a Altagracia Hernandez, Defendant.

Supreme Court, New York County, New York.

Nov. 21, 2011.

Daniel S. Kratka, Esquire, Wilens & Baker, P.C., New York, for the defendant.

Sherene A. Crawford, Esquire, Assistant District Attorney, New York County District Attorney's Office, New York, for the prosecution.

MARCY L. KAHN, J.

Defendant Gleni De Jesus stands convicted by plea of guilty of one count of attempted criminal sale of a controlled substance in the third degree (PL §§ 110/220.39 [1] ). She now moves to renew, pursuant to CPLR 2221(e), or, alternatively, to reargue, pursuant to CPLR 2221(d), her motion to vacate her judgment of conviction pursuant to Criminal Procedure Law § 440.10(1)(h), which motion was previously denied by this court after a hearing. Defendant urges renewal on the ground that new facts she now offers to the court would change its determination. Alternatively, she seeks reargument on the ground that this court overlooked or misapprehended matters of material fact and controlling law in making its determination. The People oppose the instant motion.

For the reasons stated below, defendant's motion to renew her previous motion is denied; her motion to reargue her previous motion is granted; and, upon reargument, the motion to vacate the judgment is granted.

I. FACTUAL AND PROCEDURAL BACKGROUNDA. Factual Background

The factual and procedural background of the case is set forth in detail in the prior written decisions of the court discussed infra, and only the portions pertinent for present purposes will be set forth here.

On July 29, 1998, a police officer observed defendant exchanging with another individual a tin of cocaine for a sum of United States currency. The officer arrested defendant and placed her in the rear of his patrol car. He later recovered two glassines of heroin and a tin of cocaine from the patrol car seat in which defendant had been sitting. Additionally, the officer was informed that a detective had found two tins of cocaine on the floor of the car of the other individual.

On December 2, 1998, defendant was indicted on charges of criminal sale of a controlled substance in the third degree (PL § 220.39[1] ) and criminal possession of a controlled substance in the third degree (PL § 220.16[1] ), both class B felonies, in connection with the incident.

On May 4, 1999, pursuant to a plea agreement, defendant pleaded guilty to one count of attempted criminal sale of a controlled substance in the third degree (PL §§ 110/220.39[1] ) in full satisfaction of the indictment in exchange for a sentence promise from the court of five years' probation with intensive supervision.

On June 24, 1999, defendant was sentenced to five years' probation with intensive supervision, in accordance with the plea promise.¹

B. The CPL § 440.10 Litigation

Defendant's initial motion was filed by predecessor counsel in January 2010, prior to the Supreme Court's issuance of its decision in Padilla v. Kentucky, 559 U.S. ––––, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), and was based upon claims of ineffective assistance on both federal and state constitutional grounds, as well as her claim that she was actually innocent. On that motion, defendant argued that her conviction should be vacated due to her plea counsel's alleged failure to advise her that her conviction would lead to automatic deportation. She further claimed that she would not have pleaded guilty had she known that she would be subject to mandatory deportation as a result.

On March 31, 2010, the Supreme Court issued its decision in Padilla. On May 21, 2010, new counsel appeared for De Jesus and filed a supplemental motion seeking vacation of the judgment under Padilla. In response to the court's inquiry, incoming defense counsel advised:

After full review of the prior filings, we have decided that we will not adopt the arguments set forth in [predecessor counsel's] motion. We will instead rely solely on the argument set forth in our motion filed May 19, 2010: that counsel did not receive effective assistance of counsel because her former attorney failed to advise her that her plea would subject [her] to mandatory deportation.

(Letter to the court from Dorea Silverman, Esquire dated June 28, 2010 [June 2010 letter] ).

The prosecution initially conceded the retroactive applicability of Padilla to defendant's case and suggested that the motion was appropriate for consensual resolution. (Letter to the court from Assistant District Attorneys Barbara Hutter, Esquire and Sherene Crawford dated July 23, 2010). In September 2010, the People reversed their position on both issues. (People's Memorandum of Law in Opposition, filed Sept. 20, 2010).

On December 10, 2010, this court issued a written order granting defendant's motion to the extent that it found that Padilla applied retroactively to the collateral review of defendant's case and directing that a hearing be held on the issues of whether defendant's plea and counsel's representation fell below an objective standard of reasonableness under Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and whether, as a result of counsel's representation, defendant suffered prejudice ( see Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 [1985] ). On December 24, 2010, this court issued a written decision explaining that order. ( See People v. Gleni De Jesus, 30 Misc.3d 1203(A), 2010 WL 5300535, 2010 N.Y. Slip op. 52259 [Sup.Ct. N.Y. County Dec. 24, 2010] [ De Jesus I] ). On February 2 and 15, 2011, this court held that hearing, and on March 15, 2011, issued its post-hearing written decision and order containing findings of fact and legal conclusions and denying defendant's CPL § 440.10 motion ( De Jesus II ). Specifically, in De Jesus II, this court found that plea counsel's representation of defendant fell below an objective standard of reasonable-ness under the Strickland standard ( Strickland v. Washington, supra, 466 U.S. at 688, 104 S.Ct. 2052) due to his failure to advise defendant of the immigration consequences of her guilty plea ( De Jesus II, at 18–20) but also found that defendant did not suffer prejudice as a result of that failure. ( Id., at 20–28).

On April 20, 2011, defendant filed the instant motion, seeking to renew her previous motion on the ground that she is now proffering new facts not offered on the previous motion that would have changed the outcome of De Jesus II, and, in the alternative, seeking to reargue the previous motion on the grounds that the court overlooked or misapprehended the applicable law and the pertinent facts in its previous ruling. On June 27, 2011, the People filed their response in opposition to the motion. On July 14, 2011, defendant submitted a supplemental pleading in the form of a letter to this court requesting that the court consider the recent decision of the United States Court of Appeals for the Third Circuit in United States v. Orocio, 645 F.3d 630 (3d Cir.2011) in determining the instant motion. On August 1, 2011, the People, in the form of a letter to this court, responded to defendant's July 14, 2011 submission. On August 5, 2011, defendant, in the form of a letter to this court, replied to the People's August 1, 2011 submission.

II. DISCUSSIONA. Threshold CPLR 2221 Issues

The threshold inquiry to be made by this court is whether defendant's motion is a proper motion for renewal or reargument.

1. Motion to Renew

On this motion, defendant urges renewal on the ground that she is offering new facts, in the form of certificates issued by the U.S. Immigration and Naturalization Service in 1997, attesting to the approval of visas for her five children. (Affirm. of Daniel S. Kratka, Esquire in Support of Motion [Kratka Affirm.], Exh. D). She also proffers her divorce decree from her first husband, Jose Polanco, along with her certificate of marriage to her current husband, David De Jesus ( Id., Exh. B); the birth certificate of her current husband revealing that he is an American citizen by birth ( Id., Exh. E); and her own affidavit in which she states, inter alia, that in 1999 two of her half-brothers lived in the United States and that she worked as a perfume salesperson in her neighborhood, having stopped working as a waitress in 1998. ( Id., Exh. C [Affidavit of Gleni Castillo De Jesus, sworn Apr. 7, 2011] [Def. Affid.], at ¶¶ 7, 8). She maintains that these new facts correct the facts which were misrepresented in her pre-sentence report (New York City Dept. of Probation Pre-sentence Investigation Report, June 21, 1999 [pre-sentence report or PSI] ) or clarify her testimony at the hearing, and that they would have changed the determination of the prior motion, had they been offered at the hearing.

CPLR Rule 2221(e) sets forth the three-pronged standard for a motion for leave to renew as follows:

A motion for leave to renew:

1. shall be identified specifically as such;

2. shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination; and

3. shall contain reasonable justification for the failure to present such facts on the prior motion.

Here, defendant's motion is identified as a motion to renew, and thus meets the first requirement. (CPLR 2221[e][1] ).

The court recognizes the significance of the evidence proffered by defendant on this motion, particularly the certificates attesting to the approval of the children's visas. Nevertheless, even assuming that the certificates and other documents proffered by defendant constitute “new facts” that would have changed the determination of the prior motion (CPLR 2221[e][2] ), defense counsel knew or should have known of them prior to the CPL § 440.30(5) hearing and should have brought them...