People v. Powell
| Decision Date | 27 February 2012 |
| Parties | The PEOPLE of the State of New York, v. Sadiki POWELL, Defendant. |
| Court | New York Supreme Court |
Victor Knapp, Esq., Kew Gardens, for Defense.
ADA Shulamit Rosenblum–Nemec, Office of the District Attorney, Kings County, Brooklyn, for ADA.
Defendant moves, pro se, for an order vacating his judgment of conviction pursuant to CPL § 440.10 on the grounds that he received ineffective assistance of counsel. Specifically, defendant alleges that his attorney provided incorrect advice about the immigration consequences of his plea. For the following reasons, the motion is denied.
Defendant, a native of Jamaica, entered the United States on January 5, 2001 at the age of sixteen using another person's passport. Upon arriving in Miami, defendant was detained by immigration authorities and placed in an unsecured boys' detention facility. On January 18, 2001, Immigrations and Customs Enforcement (“ICE”) served him with a Notice to Appear which specified that defendant was ineligible for admission to the United States because he was likely to become a public charge and had no visible means of support. The Notice also cited defendant's presentation of a false passport and his lack of valid documentation permitting entry into the country. Defendant appeared in Immigration Court but absconded from the detention facility before the case was concluded. On May 14, 2001, an order of removal was ordered. That order was never executed on account of defendant's flight. Defendant has since lived with his aunt in New York.
Defendant was subsequently arrested on January 2, 2004 during a buy and bust operation in Brooklyn. Police recovered pre-recorded buy money and additional cash from defendant's person. Defendant was charged with criminal sale of a controlled substance in the third, fifth and seventh degrees (PL §§ 220.39, 220.31, 220.03).
On March 25, 2004, defendant, represented by Katherine Fitzer, Esq. of the Legal Aid Society, pleaded guilty to attempted criminal sale of a controlled substance in the third degree (PL § 110/220.39) in exchange for a promised sentence of one day in jail and five years' probation. At the plea allocution, the court advised defendant, Defendant replied, “Yes.” Defendant was sentenced in accordance with the plea agreement on May 17, 2004.
Defendant is currently in ICE detention and is being held for removal pending a motion to reopen in Immigration Court. According to defendant, if that motion is granted, defendant will qualify for an adjustment of status because he is now married to a United States citizen. However, his instant conviction of an aggravated felony necessarily bars any such adjustment. Accordingly, defendant seeks to vacate his judgment of conviction in order to avoid deportation.
Defendant claims that he asked his attorney how his guilty plea would affect his immigration status, and that she told him that if he married a U.S. citizen he should be able to remain in the United States despite his conviction. He further claims that his attorney never informed him that he was pleading guilty to an aggravated felony that carried deportation as a mandatory consequence. Defendant argues that had his attorney properly advised him about the immigration consequences of his plea, he would have never accepted the plea and would have proceeded to trial instead. According to defendant's new counsel, trial counsel Fitzer was contacted about defendant's instant claims but did not provide an affidavit. Fitzer's supervisor informed counsel that the Legal Aid Society file indicates that Fitzer gave defendant advice regarding the immigration consequences of his plea.
The People have submitted an affirmation by Fitzer, who states that at the time of defendant's representation she was familiar with the immigration consequences of guilty pleas as affecting non-citizen defendants. While Fitzer has no independent recollection of defendant's case, it was and remains her usual practice to advise all clients about the consequences of accepting a plea and to consult with the internal Immigration Unit of the Legal Aid Society concerning the immigration consequences of a given plea. Furthermore, she states in her affidavit that her file indicates that defendant was given immigration advice. Finally, Fitzer states that she would not have told defendant that his plea would have no effect on his immigration status or suggested that he marry a United States citizen in order to avoid deportation.
Defendant relies on Padilla v. Kentucky, 130. S.Ct. 1473 (2010) to support his claim that his attorney gave him incorrect advice about the immigration consequences of his plea. The People, however, contend that Padilla need not be applied to this court's determination because defendant alleges that he received incorrect advice rather than no advice at all, and that People v. McDonald, 1 NY3d 109 (2003) would furnish the relief defendant seeks, if he is so entitled.
A defendant in a criminal proceeding is constitutionally entitled to effective assistance of counsel (Strickland v. Washington, 466 U.S. 668 [1984];People v. Linares, 2 NY3d 507, 510 [2004];seeU.S. Const., 6th Amend.; NY Const., art. 1, § 6). To prevail on an ineffective assistance of counsel claim under the federal standard, the defendant must first be able to show that counsel's representation fell below an “objective standard of reasonableness” based on ( id . at 687). Counsel is “strongly presumed” to have exercised reasonable judgment in all significant decisions ( Strickland at 690).
Defendant must also “affirmatively prove prejudice” by showing that were it not for counsel's unprofessional errors, there is a reasonable probability that the outcome of the proceeding would have been different ( Strickland at 693). A reasonable probability in this context is “probability sufficient to undermine the outcome” ( id. at 694). Furthermore, in assessing prejudice under Strickland “[t]he likelihood of a different result must be substantial, not just conceivable” (Harrington v. Richter, ––– U.S. ––––, 131 S.Ct. 770, 792 [2011] ). Thus, the Strickland standard is “highly demanding” (Kimmelman v. Morrison, 477 U.S. 365, 382 [1986] ) and “rigorous” (Lindstadt v. Keane, 239 F3d 191, 199 [2d Cir.2001] ). Where a defendant enters his plea upon the advice of counsel, he must show that, but for counsel's errors, he would not have pleaded guilty and instead insisted on going to trial (Hill v. Lockhart, 474 U.S. 52, 56, 69 [1985] ).
In New York, a defendant's right to the effective assistance of counsel is violated when “defendant's counsel fails to meet a minimum standard of effectiveness, and defendant suffers prejudice from that failure” (People v. Turner, 5 NY3d 476, 479 [2005] ). To meet this standard, defendant “must overcome the strong presumption” that he was represented competently ( People v. Ivanitsky, 81 AD 976 [2d Dept 2001]; People v. Myers, 220 A.D.2d 461 [2d Dept 1995]. “So long as the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation the constitutional requirement will have been met” (People v. Baldi, 54 N.Y.2d 137, 147 [1981] ). In the context of a guilty plea, a defendant has been afforded meaningful representation when he receives an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel (People v. Ford, 86 N.Y.2d 397, 404 [1995] ). Thus, where “a defendant, on the advice of counsel, has entered a plea of guilty and reaped the benefits of a favorable plea bargain which substantially limits his exposure to imprisonment, he has received adequate representation” (People v. McClure, 236 A.D.2d 633 [2d Dept 1997] ).
A defendant must also satisfy the prejudice requirement by showing that there is a reasonable probability he would have insisted on a jury trial if not for counsel's alleged deficiency (People v. Rodriguez, 188 A.D.2d 623 [2d Dept 1992] ). This showing may be satisfied by an affidavit setting forth the factors that a defendant considered in accepting the plea (People v. McDonald, 1 NY3d 109, 115 [2003] ). Some of the factors that may be described in an affidavit include the strength of the prosecution's case, the availability of a defense, the likelihood of success at trial, a comparison of the sentence promised with the potential incarceration the defendant faced if convicted at trial, counsel's advice as to the reasons to accept the plea bargain, and the reason why defendant admitted committing the act (People v. McDonald, 296 A.D.2d 13, 20 [3d Dept 2002] ). The claim must be supported by objective facts, and a bare claim that the defendant would have insisted on proceeding to trial is insufficient (People v. McKenzie, 4 AD3d 437, 439 [2d Dept 2004]; People v. Melio, 304 A.D.2d 247, 251–252 [2d Dept 2003] ).
In Padilla, the Supreme Court held that defense counsel has an affirmative duty under the Sixth Amendment to provide correct advice to a non-citizen client about the risk of adverse immigration consequences of a guilty plea. In reaching its decision, the Court cast aside the difference between acts of misrepresentation and omission, finding that counsel's silence on the possibility of deportation was no longer an option. “When the law is not succinct and straightforward ..., a criminal defense attorney need do...
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...Misc.3d ___, 2012 N.Y. Slip Op. 32281[U][2012],supra; People v Hendy, ___ Misc.3d ___, 2012 N.Y. Slip Op. 32255[U][2012], supra; People v Powell, 35 Misc.3d 1214[A][2012], supra; People v Delacruz, ___ Misc.3d ___, 2012 N.Y. Slip Op. 32686[U][2010], supra). The New York standard regarding e......