People v. Mercedes
| Decision Date | 23 October 2012 |
| Docket Number | No. 06699/01.,06699/01. |
| Citation | 964 N.Y.S.2d 61,2012 N.Y. Slip Op. 52019,37 Misc.3d 1213 |
| Parties | The PEOPLE of the State of New York v. Carlos MERCEDES, Defendant. |
| Court | New York Supreme Court |
OPINION TEXT STARTS HERE
New York County District Attorney Cyrus R. Vance Jr. (Charles Kee and Stuart Silberg, of counsel) on behalf of the People.
Andrew L. Friedman, on behalf of the Defendant.
The Defendant moves here to vacate a guilty plea he entered in 2002 to the Class C felony of Criminal Possession of a Controlled Substance in the Fourth Degree because of his assertion that his attorney at the time did not advise him of the immigration consequences of his plea and that had he known those consequences he would not have pled guilty. See Padilla v. Kentucky, 130 S.Ct. 1473 (2010). This Court conducted a hearing on Defendant's motion at which the Defendant and his former attorney testified. For the reasons stated below, Defendant's motion is granted and his guilty plea is vacated.
The Defendant is currently a 32 year-old lawful permanent resident of the United States who is facing mandatory deportation because of his 2002 conviction. Mr. Mercedes was arrested on July 25, 2001 and initially charged with Criminal Possession of a Controlled Substance in the Second and Third Degrees. The People and the Defendant have presented two very similar versions of the facts behind the Defendant's conviction.
According to the People's grand jury evidence (discussed infra ), the police observed the Defendant while seated in the driver's seat of a car receive a small bag containing heroin from the car's front passenger, Lujan Tejada, and place the bag under the Defendant's car seat. The bag was recovered from under the seat and $5200 of currency was recovered from the car's trunk. The Defendant's version of these events is consistent in most respects. The only material difference is that, according to the Defendant, his passenger threw the bag of heroin on the center console of the car between the front seats when Mr. Tejada saw police approaching the vehicle. The Defendant now asserts that he did not know the bag contained narcotics until after he was arrested. Mr. Mercedes was not the owner of the car. This was the Defendant's first contact with the criminal justice system although his co-defendant had previous contacts including a Youthful Offender adjudication for a drug sale in 1995.
The Defendant and Mr. Tejada were represented by the same attorney, Rene Medina, who was hired by Mr. Tejada. Mr. Mercedes was released on his own recognizance at his arraignment. He was indicted for Criminal Possession of a Controlled Substance in the Third and Fourth Degrees. He entered his guilty plea on May 30, 2002 before Justice James Yates with a promised sentence of 5 years probation. During a standard plea allocution, Mr. Mercedes admitted that he and his co-defendant had jointly possessed more than 1/8 of an ounce of heroin.
Mr. Mercedes was born in the Dominican Republic. He said he was very poor as a child, sometimes ate only once a day and slept in one room with his mother and sister. He moved to Puerto Rico in 1994 when he was 13 years old with his mother and sister as a permanent United States resident. He later came to New York and eventually reached the 12th grade here, but never graduated from high school. He said he came to the United States for a better life.
In 2002, his two year-old daughter lived in the United States. His daughter's mother had primary custody of the child but Mr. Mercedes spent a significant amount of time with her. At that time, his mother, sister, grandmother and stepfather were also in the United States as lawful residents. He described the very close relationships he had with his mother, sister and grandmother in 2002. These family members are now United States citizens and Mr. Mercedes also has multiple additional family members in the United States. He has one aunt in the Dominican Republic. Mr. Mercedes said that he did not own any property in the Dominican Republic in 2002.
At the time of his arrest, he had two or three jobs, one at Burger King and one at Pay Less. He said that his co-defendant, Mr.Tejada, was a nephew of his stepfather. Mr. Mercedes said that he had previously been detained once before by the police when he was with Mr. Tejada driving back with him from Maryland where Mr. Tejada's brother used to live. The two were stopped when the police believed they smelled marijuana in the car but were released when that proved to be unfounded. There was no evidence presented at the hearing that Mr. Mercedes had any criminal justice system contacts other than those associated with his instant conviction.
On the date of the arrest, Mr. Mercedes had been at a family reunion barbeque arranged by his stepfather in a park in the Bronx. This occurred on a Wednesday afternoon, but Mr. Mercedes said it was common for his family to hold such events on Wednesdays. Mr. Tejada asked the Defendant to drive him downtown to pick up Mr. Tejada's girlfriend in Mr. Tejada's car. Mr. Tejada said he did not want to drive himself because his driver's license had expired. They went to an address on Madison Avenue, Mr. Tejada called his girlfriend to come downstairs and the two car occupants were then directed to move from the spot they were at in front of a firehouse by a fireman. They circled the block and then returned to the same spot. Mr. Tejada then noticed police officers approaching the car and took a bag from his pocket and threw it inside the car. The bag landed on the console between the driver's side of the car and the passenger side, closer to Mr. Mercedes. The bag was smaller than one finger on a hand and was later determined to contain heroin. Mr. Tejada and the Defendant were both taken into custody and while in custody, Mr. Tejada urged the Defendant to plead guilty to possessing the narcotics.
Mr. Mercedes said a search of his person did not locate any drugs, that he did not own the car and that he did not know there had been narcotics in the vehicle prior to the drugs being thrown. The Defendant was released after his arraignment and Mr. Medina became his lawyer. He agreed that the 24 hours he spent in jail prior to his arraignment were not pleasant and that he did not want to go to jail. He did not pay for Mr. Medina's services. At a court appearance, Mr. Medina told the Defendant that the People were offering a disposition of 5 years probation, that there were a “lot of chances to win” at trial but that if he lost, he would likely receive a sentence of 1–3 or 2–6 years incarceration.1 Mr. Medina also said that Mr. Mercedes could get a Shock Incarceration program which would result in his release in 6 to 8 months. Mr. Mercedes said he pled guilty because “I didn't want to get away from my daughter and my family”.2
He agreed that he had lied to the judge during his plea allocution when he admitted to committing the crime and said he did so in order to avoid going to jail and being separated from his family. Mr. Mercedes asserted that Mr. Tejada had pressured him to plead guilty. He acknowledged, however, that both he and Mr. Tejada pled guilty on the same day and that Mr. Tejada's plea occurred before his own. Mr. Mercedes said that neither Mr. Medina nor the Court ever talked to him about the immigration consequences of his guilty plea. He asserted that had he known about those consequences, he would “never” have pled guilty. Explaining, he said that 3 He also said he would not have pled guilty because he had a lot of chances to win the case and because he would have preferred to serve 6 or 7 months, a year or even years in prison rather than “a whole life”.4 He said that he knew nothing about Santo Domingo [in the Dominican Republic], had no one there and was currently being confined and subject to mandatory deportation to that country. Mr. Mercedes acknowledged that because he was not incarcerated during the pendency of his criminal case, he had ample opportunity to speak with Mr. Medina. Mr. Mercedes said he never told Mr. Medina that Mr. Mercedes was from the Dominican Republic but assumed Mr. Medina was aware of that fact. The Defendant said that he was not aware at the time that immigration enforcement had been increased after September 11, 2001. He was aware that there were people who were deported from the United States, but assumed such deportations occurred only for persons without “papers” rather than for legal residents like himself. He assumed that any consequences arising from his criminal conviction would end once his probation was over.
Rene Medina represented the Defendant in the instant criminal proceeding. Mr. Medina said that he had never practiced immigration law and had only a perfunctory knowledge of the field in 2001–2002. He said he did not have any recollection of his representation of the Defendant prior to the instant motion being brought but that since that time he had come to a very vague recollection of the matter. He said that in 2001–2002 it was not his practice to discuss immigration matters with clients prior to guilty pleas and that if asked about the matter by a client he would suggest the client contact an immigration attorney. He said that he had begun informing clients about immigration matters after the Padilla decision.
Mr. Medina said that at the time of the Defendant's plea, immigration issues would arise only with respect to incarceratory sentences, since with respect to non-incarceratory sentences, clients were not in peril of deportation. Mr. Medina said that his practice in 2001–2002 with respect to clients facing an incarceratory sentence, depending on a client's nationality, might have been to advise the client to consult an immigration attorney prior to entering into a...
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