People v. Mebuin

• Decision Date: 28 December 2017
• Docket Number: SCI 598/10,4557
• Citation: 158 A.D.3d 121,68 N.Y.S.3d 68
• Parties: The PEOPLE of the State of New York, Respondent, v. Reuel MEBUIN, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

158 A.D.3d 121

68 N.Y.S.3d 68

The PEOPLE of the State of New York, Respondent,

v.Reuel MEBUIN, Defendant–Appellant.

4557

SCI 598/10

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

ENTERED: DECEMBER 28, 2017

Robert S. Dean, Center for Appellate Litigation, New York (Robin Nichinsky of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Katherine Kulkarni and Patrick J. Hynes of counsel), for respondent.

John W. Sweeny, Jr., J.P., Karla Moskowitz, Marcy L. Kahn, Ellen Gesmer, JJ.

GESMER, J.

Both the United States Supreme Court and the New York Court of Appeals have recognized that, for many noncitizens, deportation may be as dire a consequence of conviction as incarceration (see e.g. Lee v. United States, ––– U.S. ––––, 137 S.Ct. 1958, 1966, 198 L.Ed.2d 476 [2017] ; People v. Peque, 22 N.Y.3d 168, 183, 980 N.Y.S.2d 280, 3 N.E.3d 617 [2013], cert denied sub nom Thomas v. New York, ––– U.S. ––––, 135 S.Ct. 90, 190 L.Ed.2d 75 [2014] ). In this appeal from the summary denial of his CPL 440.10(1)(h) motion, defendant contends that his counsel provided him ineffective assistance by misadvising him as to the deportation consequences of a misdemeanor guilty plea. Because defendant's allegations are sufficient to warrant a hearing, we hold that the motion court abused its discretion by summarily denying defendant's motion, and we remit the matter for further proceedings.

Background

Defendant, a citizen of the Republic of Cameroon, arrived in the United States in 1995 and was granted asylum in 1998, reflecting a finding that he had a well-founded fear of persecution if he returned to Cameroon. He became a lawful permanent resident in 2004.

In 2009, defendant was indicted on two counts of the class D felony of sexual abuse in the first degree for having allegedly touched the private parts of his ex-girlfriend's two minor daughters.

On February 5, 2010, defendant appeared before the court with his counsel. The People offered a sentence of a conditional discharge if defendant pleaded guilty to the class A misdemeanor of endangering the welfare of a child. When the court asked defendant if he was going to agree to take the plea that day, they had the following exchange:

DEFENDANT: "Your honor, I very much want to plead guilty, but I am so concerned with the—

THE COURT: "You're what? ... I am not your lawyer, you have a lawyer. I am just the judge. You tell me if you want the plea, and I will tell you what the consequences will be, but I can't help you with your immigration problems.

...

THE COURT: "[I]t's a very good offer, and if you get convicted of a felony you will still have the deportation issue."

Defendant accepted the People's offer. Accordingly, the court allocuted defendant to establish that he had acted in a manner injurious to the physical, mental, or moral welfare of his ex-girlfriend's two daughters, the elements of endangering the welfare of a child ( Penal Law § 260.10[1] ). The court then allocuted defendant as to whether he had touched the children inappropriately on their private parts, which established the elements of sexual abuse in the first degree ( Penal Law § 130.65[3] ), although it was not necessary to the plea agreement. Defendant's attorney did not object.

The court then stated: "Just one other thing I want to tell you that you're pleading in State court to a misdemeanor, however, this has nothing to do with your immigration status which is not decided by me. It will be decided in another venue do you understand that?"

Defendant answered, "I do."

Two weeks later, defendant appeared with counsel and pleaded guilty to one count of endangering the welfare of a child. The court again allocuted defendant as to whether he had acted in a manner injurious to one of his ex-girlfriend's daughters, and then incorporated, by reference, the full factual allocution that it had taken previously. During this appearance, the court stated: "This plea could affect your immigration status. I have no control over that. That's determined by the federal government. Do you understand that as well?" Defendant answered, "I do." The court accepted the plea and imposed the promised sentence. Defendant did not appeal.

Defendant applied for naturalization in September 2011. In March 2012, he was notified that the federal government sought to deport him, alleging that he had been convicted of an aggravated felony and a crime of child abuse ( 8 USC §§ 1227 [a][2][A][iii], [E][i] ). He was immediately detained in immigration custody in New Jersey. Soon after, defendant's application to naturalize was denied for "poor moral character," based on the facts he allocuted to in the second part of his allocution.

In May 2012, the Newark Immigration Court granted the deportation petition based on defendant's conviction and his factual allocution on February 5, 2010. Defendant was ordered removed.¹

While detained, defendant, pro se, submitted a motion to "revise and revoke" in March 2013, seeking to vacate his conviction on the grounds of ineffective representation under People v. McDonald, 1 N.Y.3d 109, 769 N.Y.S.2d 781, 802 N.E.2d 131 (2003), because his counsel had misadvised him of the deportation consequences of his plea.² In support of the motion, defendant swore that counsel had told him that the plea would "have no [deportation] consequences at all" and that, if the plea did lead to deportation consequences, "[counsel] will get defendant out of any such consequences." Defendant also swore that he only became aware of the consequences of his guilty plea after he was placed into removal proceedings following his application to naturalize. Defendant explained that, had he known that the plea would result in deportation, he would not have pleaded guilty since he had been persecuted for his political views in his home country. Defendant noted that his child, a United States citizen, would be harmed by his deportation because he was a single parent. Defendant also supported his motion with letters of support from his son and from the staff and members of his church.

In opposition, the People argued, inter alia, that the court lacked jurisdiction to hear defendant's motion because he was in immigration custody in New Jersey, that defendant's allegations were conclusory and unsupported by an affidavit by his counsel, that defendant had failed to establish that, but for counsel's alleged ineffectiveness, he would have rejected the plea and gone to trial, that defendant was not prejudiced because he had obtained a nonincarceratory misdemeanor disposition, and that the court's statements to defendant had made the risk of deportation clear to him.

In reply, defendant submitted documentation of his status as an asylee and subsequent status as a lawful permanent resident. Defendant also explained the absence of an affidavit from his counsel by swearing that he had written to counsel but received no response. Defendant alleged that he had asked to take the case to trial but counsel had discouraged him. Critically, defendant swore that he would have "insisted" on going to trial had counsel not misadvised him, because even "[l]ife in jail would have been ... a better option than the death sentence [that] defendant [would] face[ ] upon his return to his native country if deported."

The motion court denied defendant's motion for the reasons stated in the People's affirmation in opposition.

A justice of this Court granted defendant leave to appeal ( CPL 460.15 ), and we now reverse.

Analysis

A court may deny a motion under CPL article 440 without a hearing when, as the People argued here:

"(a) The moving papers do not allege any ground constituting legal basis for the motion; or

"(b) The 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, and (ii) under these and all the other circumstances attending the case, there is no reasonable possibility that such allegation is true" ( CPL 440.30[4] ).

This Court may reverse the summary denial of a CPL article 440 motion when the motion court abuses, or improvidently exercises, its discretion (see People v. Samuels, 143 A.D.3d 401, 402, 38 N.Y.S.3d 541 [1st Dept. 2016] ).

We grant defendant's motion to the extent of ordering a hearing, because he sufficiently alleged both that counsel's performance fell below an objective standard of reasonableness and that he was prejudiced by the deficient performance ( McDonald, 1 N.Y.3d at 113–114, 769 N.Y.S.2d 781, 802 N.E.2d 131, citing Hill v. Lockhart, 474 U.S. 52, 58–59, 106 S.Ct. 366, 88 L.Ed.2d 203 [1985] ; Strickland v. Washington, 466 U.S. 668, 687–688, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ).³

Defendant showed that counsel "affirmative[ly] misrepresent[ed]" ( McDonald, 1 N.Y.3d at 115, 769 N.Y.S.2d 781, 802 N.E.2d 131 ) the deportation consequences of the plea by alleging that counsel advised him that there would be no deportation consequences to the plea and that, if there were, counsel would simply "get defendant out of" them ( People v. Santos, 145 A.D.3d 461, 44 N.Y.S.3d 14 [1st Dept. 2016] ; People v. Rosario, 132 A.D.3d 454, 17 N.Y.S.3d 134 [1st Dept. 2015] ; People v. Roberts, 143 A.D.3d 843, 845, 38 N.Y.S.3d 618 [2d Dept. 2016] ).

The People challenge the sufficiency of defendant's allegations on the ground that defendant did not supply an affidavit by counsel ( CPL 440.30[4][d] ). We have not always required an attorney affidavit on a motion under CPL 440.10(1)(h) (see People v. Pedraza, 56 A.D.3d 390, 868 N.Y.S.2d 186 [1st Dept. 2008], lv denied 12 N.Y.3d 761, 876 N.Y.S.2d 712, 904 N.E.2d 849 [2009] ; People v. Gil, 285 A.D.2d 7, 11–12, 729 N.Y.S.2d 121 [1st Dept. 200...