People v. Santos

• Decision Date: 29 April 2013
• Citation: 969 N.Y.S.2d 390,2013 N.Y. Slip Op. 23145,40 Misc.3d 400
• Parties: The PEOPLE of the State of New York, v. Miguel SANTOS, Defendant.
• Court: New York Supreme Court

40 Misc.3d 400
969 N.Y.S.2d 390
2013 N.Y. Slip Op. 23145

The PEOPLE of the State of New York,
v.
Miguel SANTOS, Defendant.

Supreme Court, Bronx County, New York.

April 29, 2013.

[969 N.Y.S.2d 393]

Office of the Appellate Defender (Risa Gerson of counsel) for defendant.

Robert T. Johnson, District Attorney (Clara Salzberg of counsel), for plaintiff.

RICHARD L. PRICE, J.

[40 Misc.3d 402]On October 25, 2005, judgment was entered against the defendant in Supreme Court, Bronx County (Davidowitz, J.), convicting him upon his plea of guilty to criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03), a class A misdemeanor. Defendant was sentenced to a term of time served. No appeal was taken.

By motion submitted October 15, 2012, defendant moves to vacate his judgment of conviction pursuant to Criminal Procedure Law § 440.10(1)(h). By decision dated December 12, 2012, this court denied defendant's motion. This expands that decision.

I. Background and Procedural History

Defendant, a native citizen of the Dominican Republic, entered the United States on February 14, 1995, and was designated a lawful resident on a conditional basis. On June 14, 2001, those conditions were removed, and he was granted lawful permanent resident status.

On April 30, 2005, an undercover police officer observed defendant seated behind the steering wheel of a white Mitsubishi Montero while an individual identified as Vincent Reyes engaged [40 Misc.3d 403]in a brief conversation with a separately apprehended defendant. Reyes entered the vehicle through the front passenger side, remained there for several seconds, and then exited. Reyes subsequently handed several small objects to the separately apprehended defendant in exchange for a quantity of United States currency. Upon the arrest of all three individuals, officers recovered four zip lock bags containing a quantity of crack cocaine from both defendant's and Reyes' left front pants pockets, and two clear zip lock bags containing a quantity of cocaine from the separately apprehended individual's right front pants pocket. Defendant and Reyes were both charged with one count of criminal sale of a controlled substance in the third degree

[969 N.Y.S.2d 394]

(Penal Law § 220.39[1] ), and one count of criminal possession of a controlled substance in the third degree (Penal Law § 220.16[1] ).

On October 25, 2005, defendant, through his attorney, Oswaldo Gonzalez (plea counsel), entered a guilty plea as noted above. Mr. Gonzalez also represented the co-defendant, Vincent Reyes. Consequently, the court conducted a Gomberg inquiry to determine whether the defendant understood that he had the right to separate counsel. Although the defendant stated that he wanted Mr. Gonzalez to represent him, he now claims that he was unclear as to what the court asked him during the Gomberg inquiry. Mr. Gonzalez, for his part, represented that since both defendants were observed independently in possession of narcotics, no conflict existed. Consequently, the court permitted defense counsel to enter guilty pleas on behalf of both defendants. The defendant was allocuted upon his plea; sentence was immediately imposed.

On November 3, 2011, defendant was convicted in New York County (under Indictment 4802–2011) of one count of conspiracy in the second degree and four counts of criminally using drug paraphernalia. Defendant was sentenced to three years incarceration on the conspiracy count and time served on the misdemeanor counts. Defendant subsequently appealed this conviction, which is currently pending.

On January 30, 2012, the United States Department of Homeland Security, Immigration and Customs Enforcement (ICE), issued defendant a Notice to Appear (NTA) for removal proceedings. The NTA alleges he is subject to removal from the United States pursuant to Section 237(a)(2)(B)(i) because after being admitted to the United States, he was [40 Misc.3d 404]“convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in Section 102 of the Controlled Substances Act, 21 U.S.C. 802), other than a single offense involving possession for one's own use of 30 grams or less of marijuana” (see Defendant's Exhibit B).¹

On or about April 30, 2012, defendant was transferred to immigration custody, and removal proceedings based on his October 25, 2005, conviction commenced. Although a deportation order against the defendant was issued, ICE subsequently cancelled it.

Defendant then moved, through counsel, to vacate the 2005 judgment of conviction pursuant to CPL 440.10(1)(h) on the grounds that the judgment was obtained in violation of his Sixth Amendment right to effective assistance of counsel. Specifically, defendant claims that: (1) plea counsel failed to advise him that entering a guilty plea would subject him to adverse immigration consequences on the basis of Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 1483, 176 L.Ed.2d 284 [2010]; (2) neither the court nor the assistant district attorney informed him that his guilty plea could negatively impact his immigration status; (3) plea counsel created a conflict of interest by providing concurrent representation to the co-defendant; and (4) he did not fully understand the consequences of consenting to prosecution by superior court information. Defendant argues, therefore, that his plea was unlawfully entered

[969 N.Y.S.2d 395]

because it was not knowing, voluntary, and intelligent.

The People, in opposing defendant's motion, argue defendant failed to satisfy his burden of establishing that plea counsel's performance was deficient, or that he suffered any prejudice as a result of the purported deficiency. Regarding his conflict of interest claim, the People argue it is record-based and as such, may only be raised on direct appeal. Moreover, they note that the record indicates both defendants voluntarily consented to plea counsel's representation, and that any potential conflict did not actually render defendant's plea involuntary.

[40 Misc.3d 405]In his reply dated October 9, 2012, defendant petitioned this court for an expeditious decision because the deadline for the immigration court to consider this court's determination was October 26, 2012. Although this court does not, nor cannot, regularly entertain rocket docket requests, it nevertheless directed the parties to appear for oral argument on October 15, 2012.

On October 15, 2012, this court heard the parties' respective arguments. During oral argument, defense counsel noted that ICE had cancelled defendant's deportation order. Counsel also indicated that defendant's November 3, 2011, conviction for conspiracy in the second degree and criminally using drug paraphernalia (four counts) was pending appeal. Counsel then acknowledged that she sought an expeditious decision because if granted, he could retract the cancellation of removal order. This, he hoped, would enable him to preserve his sole cancellation opportunity should deportation proceedings be commenced as a result of his 2011 conviction.

II. Criminal Procedure Law § 440.10(2)(c)

The People argue that defendant's motion must be summarily denied pursuant to CPL 440.10(2)(c) because his claim is record-based and should have been raised on direct appeal. This court disagrees. CPL 440.10(2)(c) provides as follows:

2. Notwithstanding the provisions of subdivision one, the court must deny a motion to vacate a judgment when: ...

(c) Although sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's unjustifiable failure to take or perfect an appeal during the prescribed period or to his unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him (CPL 440.10[2][c] ).

While issues regarding sufficiency of a plea colloquy are by nature record-based and must be brought on direct appeal, a claim of ineffective assistance of counsel is usually raised through a collateral attack. The avenue for pursuing such claims is CPL 440.10, which provides that “[a]t any time after the entry of a judgment, the court in which it was entered may, [40 Misc.3d 406]upon motion of the defendant, vacate such judgment” (CPL 440.10[1] ). A judgment may be vacated when “[t]he judgment was procured by duress, misrepresentation or fraud on the part of the court or a person acting for or in behalf of a court or a prosecutor” (CPL 440.10[1][b] ), or in situations when “[i]mproper and prejudicial conduct not appearing in the record occurred during a trial resulting in the judgment which conduct, if it had appeared in the record, would have required a reversal of the judgment upon an appeal therefrom” (CPL 440.10[1][f] ).

It is well established that “in the typical case it would be better, and in some

[969 N.Y.S.2d 396]

cases essential, that an appellate attack on the effectiveness of counsel be bottomed on an evidentiary exploration by [a] collateral or post[-]conviction proceeding brought under CPL 440.10” ( People v. Brown, 45 N.Y.2d 852, 853–54, 410 N.Y.S.2d 287, 382 N.E.2d 1149 [1978];see also Cruz v. Berbary, 456 F.Supp 2d 410, 414 [2006], [“Denial of a CPL 440.10 motion, pursuant to 440.10(2)(c), will not always be appropriate in the ineffective assistance context, such as when the facts supporting the instance of ineffective assistance of counsel appeared outside the record”] ).

Indeed, the difficulty with reviewing ineffective assistance claims is that they are subject to reasonable disagreement as to whether or not they are reviewable on the record; the reason being they are often in part record based. As the Supreme Court explained, “when [an ineffectiveness] claim is brought on direct appeal,...