People v. Santana
| Decision Date | 19 June 2012 |
| Docket Number | No. 05420/1997.,05420/1997. |
| Citation | 2012 N.Y. Slip Op. 51144,957 N.Y.S.2d 266,36 Misc.3d 1201 |
| Parties | The PEOPLE of the State of New York, v. Franklyn SANTANA, Defendant. |
| Court | New York Supreme Court |
OPINION TEXT STARTS HEREJorge Guttlein, Esq., New York, Megan Roberts, Esq., Assistant Attorney General, Office of the District Attorney, Bronx County, Bronx.
On September 11, 1997, Defendant Franklyn Santana pleaded guilty to Attempted Criminal Sale of a Controlled Substance in the Third Degree, PL 110/220.39(1), a Class C felony. Defendant now seeks to vacate his guilty plea, contending that he was denied effective assistance of counsel because, among other things, his trial counsel did not inform him of the adverse consequences a guilty plea might have on his immigration status, pursuant to Padilla v. Kentucky, ––– U.S. ––––, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). Defendant also now denies that he is guilty of the crime.
For the reasons set forth below, Defendant's motion is denied.
On July 1, 1997, Defendant was charged with Criminal Possession of a Controlled Substance in the Third Degree, PL 220.16(1), and Criminal Sale of a Controlled Substance in the Third Degree, PL 220.39(1), both class B nonviolent felonies. In 1997, a class B nonviolent felony was punishable by an indeterminate sentence, ranging from 1 to 3 years to 8–1/3 to 25 years. See 1997 Penal Law § 70.00(2).
On September 11, 1997, Defendant pleaded guilty before the Honorable Megan Tallmer, A.S.C.J., to Attempted Criminal Sale of a Controlled Substance in the Third Degree, PL 110/220.39(1), a class C felony, in exchange for a promised sentence of five years probation.
At the plea proceeding, Defendant, after consultation with counsel, freely, voluntarily and willingly admitted that he committed the crime of Attempted Criminal Sale of a Controlled Substance in the Third Degree. Specifically, Judge Tallmer asked Defendant if, after consulting with his attorney, he wished to plead guilty to the felony of Attempted Criminal Sale of a Controlled Substance in the Third Degree. Defendant replied, “Yes.” Transcript of September 11, 1997 Plea Proceeding (hereafter “Plea Tr.”) at 3. The Court asked Defendant if anyone had forced him to plead guilty and Defendant responded, “no,” and the Court asked if he was aware that, by entering a guilty plea, he was giving up his right to a trial, to which Defendant responded “yes.” Id. at 3–4. The Court then asked, “By pleading guilty do you admit to me, sir, that on July 1st of this year at about 5:40 in the afternoon, at 2718 Morris Avenue, you attempted to sell cocaine to an undercover officer; is that true, sir?” and Defendant replied, “Yes.” Id. at 5. The Court then accepted Defendant's guilty plea. Id. at 5.
On October 22, 1997, Defendant was sentenced to time served plus five years probation by the Honorable Vincent Quattrochi, A.S.C.J. Transcript of October 22, 1997 Sentencing Proceeding ) at 2–3.
On July 13, 2011, Defendant filed this motion, pursuant to CPL § 440.10(1)(h), seeking to vacate his 1997 conviction. Almost fifteen years after he pleaded guilty, Defendant now contends that he is not guilty of Attempted Criminal Sale of a Controlled Substance in the Third Degree, P.L. § 110/220.39(1).
In addition, according to Defendant, retroactive application of the holding in Padilla, which was decided 13 years after Defendant's guilty plea, warrants a finding that Defendant's trial counsel was ineffective for failing to advise him of the negative collateral consequences of his guilty plea. Defendant also contends that the court never informed him of the immigration consequences of his plea, that he was never informed of his right to appeal, and that trial counsel was ineffective for: (1) failing to assist him in understanding the proceedings, which were conducted in English, while Defendant spoke only Spanish; and (2) failing to advise him of his right to appeal.
Defendant has not alleged any immigration consequences that he has experienced as a result of his plea.1
On October 5, 2011, the People filed an opposition to Defendant's motion.
On October 25, 2011, Defendant filed an Amended Affirmation of Jorge Guttlein, Esq., in Support of the Motion, and a Notice of Affirmation of Jorge Guttlein, Esq., in Response.
On November 7, 2011, the People opposed Defendant's amended submissions, by letter to Judge Tallmer. The People also pointed out that the minutes of the plea and sentence proceedings evidence that, at each proceeding, a Spanish interpreter, provided by the Court, was present and translated the proceeding.
On November 16, 2011, Defendant filed a supplemental affidavit to the motion, from Christopher Booth, Esq., Defendant's retained counsel during the prosecution of this case,2 who was present during the plea proceeding (“Defendant's November 2011 Supp. Aff.”). Mr. Booth affirmed that he had no independent recollection of whether he provided any immigration advice to Defendant at the time of the plea, or whether it was his practice at that time to provide such advice to defendants.
On February 14, 2012, Judge Tallmer issued a written decision, in which she denied the motion without prejudice.
On April 3, 2012, Defendant file a Notice of Motion for reconsideration of his prior motion. Defendant attached new documents to this motion: (1) a letter from Mr. Booth's former law firm, stating that, due to the age of the case, they no longer possessed the file; and (2) copies of two letters sent by Defendant's current counsel to the attorney who represented Defendant at the sentencing proceeding, asking him for information as to any immigration advice he may have given to Defendant, which letters went unanswered.
On April 27, 2012, Judge Tallmer vacated all prior orders and decisions rendered on Defendant's motion to vacate his conviction and recused herself from the case.
Thereafter, the matter was transferred to this Court. By letter dated May 2, 2012, this Court informed the parties that it would decide the motion to vacate de novo. The Court set June 8, 2012, as the return date for the motion.
On June 7, 2012, the People filed an opposition to Defendant's April 13, 2012, motion for reconsideration.
On June 15, 2012, Defendant filed a reply to the People's opposition.
The crux of this case is whether a decision by the United States Supreme Court in 2010, Padilla v. Kentucky, ––– U.S. ––––, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), which held that failure to inform a defendant of the potential immigration consequences of a guilty plea constitutes ineffective assistance of counsel, is retroactive to this pre- Padilla case which is before the Court on collateral review.
In Padilla, the Supreme Court held that, where the defendant is a non-citizen, and the law as to the immigration consequences of his plea are unambiguous, defense counsel must advise their criminal clients that deportation “will” result from a conviction. Id. at 1483. Where the immigration consequences of a conviction are unclear or uncertain, counsel must advise that deportation “may” result. Id. In any case, counsel must give a defendant some advice about deportation-counsel may not remain silent about immigration. Id. at 1484.
Since Padilla, an open issue has existed as to the retroactive applicability of Padilla to cases on direct and collateral review. Indeed, New York courts, as well as federal courts that have addressed the issue, vary with respect to their determination of the issue.3 Currently, that issue is sub judice before the U.S. Supreme Court.4
Until the Supreme Court decided Padilla in 2010, in New York, there was no affirmative duty by defense counsel to advise their clients of the immigration consequences, if any, of their plea.5See People v. Ford, 86 N.Y.2d 397, 403, 633 N.Y.S.2d 270, 657 N.E.2d 265 (1995); People v. McDonald, 1 N.Y.3d 109, 114, 769 N.Y.S.2d 781, 802 N.E.2d 131 (2003).
As set forth below, the question of whether Padilla retroactively applies to cases on direct and collateral review hinges on whether the Padilla rule, as a constitutional rule of criminal procedure, is found to be an “old rule” applied to new facts or is, in fact, a “new rule” of criminal procedure. Even if Padilla is a new rule, which, as set forth below, the Court so finds, it cannot be applied retroactively on collateral review unless it is a watershed rule, to wit, a groundbreaking change which, as set forth below, this Court finds it is not.
Section 440.10(1)(h) of the CPL provides that, after entry of a judgment, a defendant may make a motion to the court in which judgment was entered to vacate the judgment on the grounds that it was obtained in violation of a right of the defendant under the United States Constitution or the constitution of this state.
Here, Defendant contends that, pursuant to Padilla, his constitutional right to effective counsel was violated.
The Sixth Amendment to the U.S. Constitution and Article 1, § 6 of the New York Constitution both protect a defendant's right to counsel at a criminal trial. To meet federal constitutional muster an attorney's representation of a defendant must meet a minimum standard of effectiveness which is evaluated in a two-prong analysis as to whether counsel's performance was deficient and, if so, whether such deficiency prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The federal standard, articulated in Strickland, requires a showing of prejudice: that, but for defense counsel's error, the outcome of the trial would have been different. Strickland, 466 U.S. at 694.
The New York standard of effectiveness requires, at a minimum, that a defendant be afforded “meaningful representation.” People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 (1981); People v. Benevento, 91 N.Y.2d 708, 713, 674 N.Y.S.2d 629, 697 N.E.2d 584...
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People v. Mercedes
...30 Misc.3d 55 (App Term 2010) ( Padilla applied a well-established old rule and thus should be applied retroactively); with People v. Santana, 36 Misc.3d 1201(A) (Bronx County Supreme Court, 2012 (Duffy, J.) ( Padilla announced a new rule of criminal procedure and thus should not be applied......