People v. Picca

• Decision Date: 06 June 2012
• Parties: The PEOPLE, etc., respondent, v. Claudio PICCA, appellant.
• Court: New York Supreme Court — Appellate Division

97 A.D.3d 170

947 N.Y.S.2d 120

2012 N.Y. Slip Op. 04368

The PEOPLE, etc., respondent,

v.Claudio PICCA, appellant.

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

June 6, 2012.

Lynn W.L. Fahey, New York, N.Y., for appellant.

Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Shulamit Rosenblum Nemec of counsel), for respondent.

PETER B. SKELOS, J.P., THOMAS A. DICKERSON, RANDALL T. ENG, and SANDRA L. SGROI, JJ.

SKELOS, J.P.

In Padilla v. Kentucky, ––– U.S. ––––, 130 S.Ct. 1473, 176 L.Ed.2d 284, the United States Supreme Court determined that a criminal defendant whose attorney failed to provide advice as to the immigration consequences of his plea of guilty received representation falling below an objective standard of reasonableness. The Court declined, however, to determine in the first instance whether the defendant was prejudiced by counsel's error and, thus, whether the defendant was entitled to relief on his ineffective assistance of counsel claim ( id. at 1483–1484). Instead, the Court remitted the matter to the courts of Kentucky for a determination of the question of prejudice ( id.). In the present case, the defendant similarly alleges that his counsel failed to advise him that he would be subject to removal from the United States pursuant to federal immigration statutes as a consequence of his plea of guilty, and, therefore, he was deprived of his right to counsel under the Sixth Amendment to the United States Constitution. The main issue presented is whether the Supreme Court, Kings County, erred in summarily determining that, had the defendant been so advised, he could not rationally have decided to reject the People's plea offer, and, therefore, that he could not demonstrate that he was prejudiced by counsel's error. We hold that the defendant sufficiently alleged that a decision to reject the People's plea offer would have been rational, and, thus, that the Supreme Court erred in failing to conduct a hearing on the defendant's motion.

The defendant was born in 1961 in Italy. He left Italy at the age of three, and resided with his family in France until, when he was nine years old, he immigrated with his parents and siblings to the United States. A lawful permanent resident, the defendant worked for 13 years as a clerk in the commodities market, for 5 years as a school custodian, and later as a construction laborer. He met his wife, an American citizen, in 1978, and has been married to her for more than 20 years. The defendant and his wife have three sons, who were born, and reside, in the United States.

The defendant began using alcohol and marijuana at the age of 14. He subsequently developed a dependency on cocaine and heroin. Although he enrolled himself in, and participated in, several rehabilitation programs and other substance abuse treatment programs throughout the years, he was unable to maintain sobriety. In 1997, the defendant was convicted of attempted criminal sale of a controlled substance in the third degree, and was sentenced to time served and probation, from which he was granted an early discharge.

In 2001, a criminal complaint was filed against the defendant, alleging that, on April 17, 2001, at approximately 6:30 A.M., Detective Eric Curtis of the New York City Police Department observed an individual approach the defendant on a street in Brooklyn, give the defendant a sum of money, and receive from the defendant a quantity of heroin. According to the complaint, Detective Curtis thereafter apprehended the individual to whom the defendant allegedly sold drugs, and recovered the drugs from him. The complaint further alleged that Detective Curtis arrested the defendant and similarly recovered from the defendant's person a quantity of heroin. Accordingly, the complaint alleged, the defendant had twice committed the offenses of criminal possession of a controlled substance in the seventh degree and criminal possession of a controlled substance in the third degree, and once committed the offense of criminal sale of a controlled substance in the third degree. The People additionally filed a notice pursuant to CPL 710.30(1)(a), declaring their intent to present evidence at trial that, at the scene of his arrest, the defendant stated to the arresting officer: “I'll be honest with you, I've got three bundles in my underwear”; and that, at the precinct, he stated to that officer: “This is the money I got for selling drugs ... I'm guilty, I'm sorry, but I'm doing this to support my habit.”

On August 6, 2001, the defendant, represented by a now-deceased attorney then employed by Brooklyn Defender Services, pleaded guilty to attempted criminal sale of a controlled substance in the third degree, in exchange for placement in the Kings County District Attorney's Drug Treatment Alternative–to–Prison (hereinafter DTAP) program. At the time of the plea, the Supreme Court promised that it would vacate the plea and dismiss the indictment, provided the defendant successfully completed the program. If the defendant failed to complete the program, however, or violated other specified conditions, he would be sentenced to an indeterminate term of imprisonment of 4 to 8 years. Although the defendant successfully completed the residential treatment portion of the program, he relapsed while enrolled in an outpatient program. Before the Supreme Court could determine whether the defendant should be given another opportunity to obtain treatment, an immigration detainer was placed on him by United States Immigration and Customs Enforcement (hereinafter ICE), preventing the defendant's further placement in a treatment program.

On September 20, 2005, the defendant, represented by a second attorney from Brooklyn Defender Services, appeared for sentencing. At that time, defense counsel informed the Supreme Court that, when the defendant pleaded guilty, the defendant “really had no idea that there were any immigration consequences to the taking of the plea.” On that basis, the defendant moved to vacate his plea. The Supreme Court denied the motion, and sentenced the defendant to an indeterminate term of imprisonment of 3 to 6 years.

The defendant appealed from the judgment of conviction, and, before that appeal was perfected in this Court, moved in the Supreme Court pursuant to CPL 440.10 to vacate the judgment on the ground, inter alia, that he was denied his right under the Sixth Amendment to the effective assistance of counsel by his attorney's failure to advise him of the removal consequences of his plea of guilty. In support of his motion, the defendant submitted an affidavit, in which he averred that, when he pleaded guilty, he was unaware that doing so could result in his removal from the United States because his attorney never so advised him. When the immigration detainer was placed on him, the defendant asserted, he thought that “it was a minor matter relating to [his] green card.” It was only when his wife consulted with an immigration attorney that the defendant learned that his plea of guilty could lead to removal. According to the defendant, he told his counsel that he wanted to withdraw his plea of guilty “[a]s soon as he learned” of this consequence, and, he averred, he never would have pleaded guilty had he known that the plea could result in his removal from the United States. Although the defendant's trial counsel and his appellate counsel both explained to him that he would again face the charges against him were he to withdraw his plea, and that he could be sentenced to more prison time than he had already served, the defendant asserted that he still wanted to withdraw his plea because “[his] biggest concern was avoiding deportation, not what sentence [he] would get.” In that regard, the defendant explained:

“I left Italy when I was only 3 years old. I have never been back to Italy since, even for a vacation. Both of my parents and all of my siblings live in the United States. I met my wife in the United States in 1978, when we were both teenagers. We have been together ever since. We have been married for more than 20 years. We have 3 sons. All of them were born in the United States. Everything important in my life is here.”

The Supreme Court denied the CPL 440.10 motion without a hearing. This Court granted the defendant's motion for leave to appeal from the order denying the CPL 440.10 motion, and subsequently consolidated the appeals from the judgment of conviction and the order. We now reverse the order, and remit the matter to the Supreme Court for a hearing on the defendant's motion.

The Sixth Amendment to the United States Constitution secures a criminal defendant's right to counsel, which is essential“to protect the fundamental right to a fair trial” ( Strickland v. Washington, 466 U.S. 668, 684, 104 S.Ct. 2052, 80 L.Ed.2d 674). “That a person who happens to be a lawyer is present ... alongside the accused, however, is not enough to satisfy the constitutional command” ( id. at 685, 104 S.Ct. 2052). Rather, the right to counsel is understood as the right to the effective assistance of counsel ( id. at 686, 104 S.Ct. 2052;see Roe v. Flores–Ortega, 528 U.S. 470, 477, 120 S.Ct. 1029, 145 L.Ed.2d 985). A defendant is entitled to such effective assistance of competent counsel “ [b]efore deciding whether to plead guilty” ( Padilla v. Kentucky, ––– U.S. at ––––, 130 S.Ct. at 1480). Indeed, the effective assistance of counsel is imperative in the pre-pleading stage because the decision to plead guilty, and thereby forfeit many of the rights guaranteed by the United States and New York Constitutions, “ ‘is ordinarily the most important single decision in any criminal case’ ” (Chin & Holmes, Effective Assistance of Counsel and the Consequences of Guilty Pleas, 87 Cornell L.Rev. 697, 698 n 1, quoting Anthony G. Amsterdam, Trial Manual of the Defense of Criminal Cases § 201 [4th ed. 1984]; see Missouri v. Frye, –––U.S. ––––, 132 S.Ct. 1399,...