People v. Lezama

• Decision Date: 05 June 2012
• Docket Number: No. 2002BX046819.,2002BX046819.
• Parties: The PEOPLE of the State of New York v. JAMIE LEZAMA, Defendant.
• Court: New York Criminal Court

35 Misc.3d 1235
953 N.Y.S.2d 552
2012 N.Y. Slip Op. 51007

The PEOPLE of the State of New York
v.
JAMIE LEZAMA, Defendant.

No. 2002BX046819.

Criminal Court, City of New York,
Bronx County.

June 5, 2012.

Law Office of Van Brown, P.C. (Van Brown, of counsel), for the Defendant.

Robert Johnson, District Attorney, Bronx County (Bari Kamlet, of counsel), for the People.

ANN SCHERZER, J.

Defendant Jamie Lezama moves pursuant to Criminal Procedure Law (CPL) 440.10(1)(h) for an order vacating his conviction, upon plea of guilty, to menacing in the third degree, on the ground that it was obtained in violation of his right to effective assistance of counsel. Based upon a review of defendant's motion papers, the People's response, and the court file, defendant's motion is denied without a hearing, as it does not contain sworn allegations to substantiate any facts in dispute. SeeCPL 440.30(4)(b); People v. Ozuna, 7 N.Y.3d 913, 915, 828 N.Y.S.2d 275, 861 N.E.2d 90 (2006)(failure to submit an affidavit from a corroborating source or explain a failure to do so warranted summary denial of a CPL 440.10 motion). Moreover, defendant's motion did not make a showing of prejudice sufficient to support his claim of ineffective assistance of counsel.

I. BACKGROUND AND PROCEDURAL HISTORY

On September 1, 2002, the defendant was arrested in Bronx County and charged with menacing in the second degree, a class A misdemeanor, in violation of Penal Law (PL) 120.14(1), criminal possession of a weapon in the fourth degree, a class A misdemeanor, in violation of PL 265.01(2), and unlawful possession of a knife, a violation of Administrative Code (AC) 10–133(b). ¹ On September 6, 2002, the defendant pled guilty to menacing in the third degree, a class B misdemeanor, in violation of PL 120.15, in exchange for a promised sentence of one year's probation and participation in the “Narco Freedom” drug treatment program. The Court's promise was conditioned upon defendant complying with three conditions: (1) cooperation with the Department of Probation in its preparation of a report; (2) abstention from conduct that would lead to his being arrested prior to the sentence date; (3) return to court on October 16, 2002 to be sentenced ( See plea minutes, Defendant's motion, Exhibit 1). The Court further informed the defendant that if he did not abide by those conditions, he could be sentenced to a jail term of up to ninety days.

On October 16, 2002, defendant failed to appear in court and a warrant was issued for his arrest. On February 18, 2004, defendant returned to court and on February 20, 2004, he was sentenced to a term of sixty days in jail.

By Notice dated March 30, 2011, the United States Department of Homeland Security (USDHS) advised defendant, a native and citizen of Trinidad and Tobago, that he was subject to removal from the United States based upon three criminal convictions including the instant one (Exhibit 1 to the People's Affirmation in Opposition).² By Order dated January 26, 2012, the Honorable Noel A. Ferris, Immigration Judge, denied defendant's application for cancellation of removal ( See Exhibit 2 to the People's Affirmation in Opposition). Defendant's appeal of that Order is currently pending ( See People's Affirmation in Opposition, para 5). Defendant is currently incarcerated due to an immigration hold at the Hudson County Correctional Center located in Kearny, New Jersey (Defendant's motion, p. 3).

Defendant now moves to vacate the judgment of conviction pursuant to CPL 440.10(1)(h) on the grounds that it was obtained in violation of his constitutional rights. More particularly, relying on Padilla v. Kentucky, 559 U.S. ––––, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), defendant claims he was denied effective assistance of counsel, in that counsel failed to advise him of the potential immigration consequences of entering a guilty plea to the crime of menacing in the second degree, including the possibility that he could be deported based upon the conviction. Defendant also moves to vacate the conviction pursuant to CPL 440.10(3)(c) in the interest of justice and for meritorious good cause (Defendant's motion, p. 1).

II. DEFENDANT FAILED TO PROVIDE SWORN ALLEGATIONS SUPPORTING THE ISSUES OF FACT HE RAISES

A judgment of conviction enjoys presumptive regularity, and a defendant moving to vacate it pursuant to CPL 440.10 bears the “burden of coming forward with sufficient allegations to create an issue of fact.” People v. Session, 34 N.Y.2d 254, 255–56, 357 N.Y.S.2d 409, 313 N.E.2d 728 (1974); People v. Stewart, 295 A.D.2d 249, 745 N.Y.S.2d 151(1st Dept.2000); People v. Braun, 167 A.D.2d 164, 165, 561 N.Y.S.2d 244 (1st Dept.1990). Indeed, CPL 440.30(4) provides:

Upon considering the merits of [a CPL 440.10] motion, the court may deny it without conducting a hearing if ... (b) [t]he motion is based upon the existence or occurrence of facts and the moving papers do not contain sworn allegations substantiating or tending to substantiate all the essential facts, as required by subdivision one; or ... (d) an allegation of fact essential to support the motion (I) is contradicted by a court record or other official document or is made solely by the defendant and is unsupported by any other affidavit or evidence.... (CPL 440.30(4)(b), (d), (i), (ii)).

A 440.10 motion based upon a claim of ineffective assistance of counsel may be denied without a hearing where the defendant fails to provide an affirmation from trial counsel supporting the factual allegations contained in the motion, or an explanation for his failure to do so. People v. Morales, 58 N.Y.2d 1008, 461 N.Y.S.2d 1011, 448 N.E.2d 796 (1983): Stewart, supra at 249–50, 745 N.Y.S.2d 151 (summary denial of 440.10 motion is proper where defendant failed to reveal an issue to be resolved by a hearing); People v. Johnson, 292 A.D.2d 284, 285, 739 N.Y.S.2d 381 (1st Dept.2002). But see, People v. Gil, 285 A.D.2d 7, 10, 729 N.Y.S.2d 121 (1st Dept.2001)(court erred in denying hearing where defendant provided viable explanation for failure to include affidavit, namely, fact that the attorney had been disbarred).

Here, defendant's motion is devoid of sworn allegations of fact substantiating his claim that his trial counsel did not advise him of the adverse immigration consequences of his guilty plea. Defendant provided neither an affirmation from trial counsel, nor an adequate explanation for his failure to obtain one. According to his papers, defendant's sole and unsuccessful effort to contact trial counsel was through the office of his prior employer, the Bronx Defenders (Defendant's motion, p. 3).

Thus, the only support for defendant's motion to...