People v. Kabre

• Decision Date: 22 July 2010
• Citation: 905 N.Y.S.2d 887,29 Misc.3d 307
• Parties: The PEOPLE of the State of New York v. Amadou KABRE.
• Court: New York Criminal Court

905 N.Y.S.2d 887

29 Misc.3d 307

The PEOPLE of the State of New York

v.Amadou KABRE.

Criminal Court, City of New York,

New York County.

July 22, 2010.

Amadou Kabre, pro se.

ADA Lauren Angelo, Esq., New York County District Attorney's Office, New York, for the People.

ABRAHAM CLOTT, J.

Petitioner seeks relief from three misdemeanor convictions of trademark counterfeiting on various grounds including that his counsel was ineffective for not advising him of the immigration consequences of his pleas. This Court holds that the rule announced in Padilla v. Kentucky, 559 U.S. ----, 130 S.Ct. 1473, 176 L.Ed.2d 284 [2010] that counsel's failure to advise a defendant about the immigration consequences of a guilty plea is not to be applied retroactively on collateral review of misdemeanor convictions.

INTRODUCTION

Petitioner seeks orders pursuant to CPL 440.10 to vacate three judgments. The argument requiring the most attention is that prior counsel was ineffective for not giving petitioner any advice at all about the potential immigration consequences of his convictions. Although in Padilla the Supreme Court held that counsel is ineffective for failing to give such advice, the decision is contrary to a prior ruling of the New York Court of Appeals, which had held that failure to give advice on immigration consequences is not ineffective because these consequences are collateral to the conviction itself ( People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265 [1995] ). Thus these cases present the question whether claims of ineffective assistance are to be judged under the standard announced in Padilla or the prior New York rule of Ford. As explained below, a petitioner making a collateral attack on a conviction can take advantage of a new rule of constitutional criminal procedure only under limited circumstances, circumstances not present here. Accordingly, petitioner's claims willbe adjudicated with reference to the law in effect at the time of therepresentation now attacked as ineffective, the standard of People v. Ford.

Petitioner has made contradictory claims that his lawyers both told him nothing at all about the potential immigration consequences of his pleas and that they each advised him incorrectly that there would be no consequences Even before Padilla, New York law clearly required that any advice given by defense counsel about immigration consequences not be incorrect ( People v. McDonald, 1 N.Y.3d 109, 769 N.Y.S.2d 781, 802 N.E.2d 131 [2003] ). As explained below, this Court holds that the Padilla rule requiring counsel to give advice (rather than say nothing) is not to be applied retroactively, at least with respect to a misdemeanor conviction. Unlike the immigration consequences attendant upon conviction of a felony, the immigration consequences of a misdemeanor conviction are often unclear.¹ This Court also holds that petitioner's claim under established New York law regarding any advice he was given does not require a hearing. The petition for CPL 440 relief is accordingly denied.

BACKGROUND

In 2002, 2003, and 2004, petitioner, a citizen of Burkina Faso, was arrested and charged with trademark counterfeiting in the third degree (PL 165.71). Each case was ultimately resolved by petitioner pleading guilty to the charge and being sentenced as promised to a conditional discharge with community service. These convictions were petitioner's seventh, eighth, and ninth for trademark counterfeiting. No appeals were taken from the convictions. Petitioner filed these claims after he was taken into immigration custody, which was when he discovered that his convictions rendered him deportable. Petitioner has not been deported and is no longer being held by the immigration authorities.

PETITIONER'S CLAIMS

I. CLAIM UNDER PADILLA V. KENTUCKY

Petitioner avers that none of his prior counsel told him about the adverse immigration consequences of a guilty plea and thathe would have exercised his right to trial had he known that the convictions could lead to his deportation. He contends that counsel was ineffective for failing to inform him of these consequences. When petitioner filed these motions, the Supreme Court had not yet decided Padilla; petitioner nevertheless argued that all his prior counsel were ineffective because they did not advise him of the immigration consequences of his plea and petitioner sought to "preserve the Padilla issue in any event."

Padilla was an appeal from a ruling by the Supreme Court of Kentucky denying post-conviction relief without a hearing ( Padilla, 559 U.S. ----, 130 S.Ct. at 1478). The defendant was a lawful permanent resident of the United States who had pleaded guilty to a drug offense ( Padilla, 559 U.S. at ----, 130 S.Ct. at 1477). The defendant claimed to the Kentucky courts that his counsel told him that his forty years of residence in the United States precluded any adverse immigration consequences from the guilty plea; in fact theconviction was a ground for mandatory deportation ( Padilla, 559 U.S. at ----, 130 S.Ct. at 1478). Padilla also alleged that had he known the immigration consequences of the plea he would have exercised his right to trial ( Padilla, 559 U.S. at ----, 130 S.Ct. at 1478). The Supreme Court of Kentucky assumed that Padilla's allegations were true, but denied him post-conviction relief without a hearing ( Padilla, 559 U.S. at ----, 130 S.Ct. at 1478). The Kentucky Court held that the Sixth Amendment guarantee of effective assistance of counsel does not protect a defendant from erroneous advice about the collateral consequences of a guilty plea ( Padilla, 559 U.S. at ----, 130 S.Ct. at 1478).

The United States Supreme Court reversed and held that failure to advise a defendant on the immigration consequences of a plea can be ineffective assistance of counsel requiring that the conviction be set aside ( Padilla, 559 U.S. at ----, 130 S.Ct. at 1484). The Court emphasized that as a result of changes in immigration law the "drastic measure' of deportation or removal is now virtually inevitable for a vast number of non-citizens convicted of crimes" ( Padilla, 559 U.S. at ----, 130 S.Ct. at 1478 (citation omitted)). Moreover, because of the unique nature of deportation, the distinction between direct and collateral consequences relied upon by the lower courts to delineate the areas where the Sixth Amendment requires effective assistance of counsel was "ill-suited" to evaluating claims about the specific risk of deportation ( Padilla, 559 U.S. at ----, 130 S.Ct. at 1482).The Court concluded that the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which requires counsel to provide " reasonable professional assistance" to defendants applies to advice regarding deportation without regard to whether these consequences are characterized as " collateral" or "direct" or whether counsel failed by giving incorrect advice or failed by giving no advice at all ( Padilla, 559 U.S. at ----, 130 S.Ct. at 1481, 1484).

Padilla was decided well after the convictions at issue here became final in 2005.² A Supreme Court decision rendered after a conviction has become final can be considered on collateral review only in limited circumstances. Under both federal and New York law, a new decision can be considered on collateral review only if the decision applied settled law to a new set of facts, or, if the decision announced a new rule, only if that rule establishes that the defendant's conduct was not criminal at all (and therefore not subject to prosecution-a circumstance clearly not present here) or if the rule is a "watershed" principle so fundamental to the fair administration of justice in the adjudication of innocence or guilt that its retroactive application is required ( Teague v. Lane, 489 U.S. 288, 311, 109 S.Ct. 1060, 103 L.Ed.2d 334 [1989] (plurality opinion, O'Connor, J.); People v. Eastman, 85 N.Y.2d 265, 275-276, 624 N.Y.S.2d 83, 648 N.E.2d 459 [1995] ). This Court concludes that in Padilla the Supreme Court announced a new rule of criminal procedure rather than applied settled law to a new set of facts and that the Padilla rule is not a "watershed" change that must be applied retroactively to cases on collateral review.

A. NEW RULE JURISPRUDENCE

Petitioner would be entitled to relief under Padilla if that decision resultedfrom an application of settled law and did not announce a new rule ( Teague v. Lane, 489 U.S. at 301, 109 S.Ct. 1060; People v. Eastman, 85 N.Y.2d at 275-76, 624 N.Y.S.2d 83, 648 N.E.2d 459). ³ Indeed, at least two reported decisions have held that Padilla is to be applied retroactively because it did not announce a new rule( U.S. v. Hubenig, 2010 WL 2650625 [E.D.CAL. 2010]; People v. Bennett, 28 Misc.3d 575, 903 N.Y.S.2d 696 [Crim. Ct., Bronx County 2010] ). The Supreme Court has defined a "new" rule as one that breaks new ground or imposes a new obligation on the states or on the federal government; a rule is also new if the result was not " dictated by precedent existing at the time the defendant's conviction became final" ( Butler v. McKellar, 494 U.S. 407, 412, 110 S.Ct. 1212, 108 L.Ed.2d 347 [1990]; see also, Teague v. Lane, 489 U.S. at 301, 109 S.Ct. 1060; People v. Eastman, 85 N.Y.2d at 275-76, 624 N.Y.S.2d 83, 648 N.E.2d 459). Petitioner can prevail here only if a New York court in 2005 (when the last conviction at issue here became final) would have been required by controlling United States Supreme Court precedent to rule that failure to discuss the immigration consequences of a guilty plea was ineffective assistance of counsel.

1. THE STATE OF THE LAW IN 2005

a. Supreme Court and Federal Courts of Appeals Decisions on Defense Counsel's Obligations to the Non-Citizen Defendant

Before the 2010 decision in Padilla, the Supreme Court had never held that defense counsel in a criminal case had any particular responsibility to advise an alien defendant of the potential consequences of a...