People v. Williams

• Decision Date: 06 September 2012
• Docket Number: Indictment Number 12416/90,Indictment Number 12107/91
• Citation: 2012 NY Slip Op 32281
• Parties: THE PEOPLE OF THE STATE OF NEW YORK v. DAVID WILLIAMS, a/k/a CRAIG WILLIAMS Defendant.
• Court: New York Supreme Court

2012 NY Slip Op 32281

THE PEOPLE OF THE STATE OF NEW YORK
v.
DAVID WILLIAMS, a/k/a CRAIG WILLIAMS Defendant.

Indictment Number 12416/90
Indictment Number 12107/91

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS: PART 26

Date: August 6, 2012
Dated: September 6, 2012

DECISION AND ORDER

MARK DWYER, J.:

On November 11, 2011, defendant filed a motion to vacate his convictions under Indictment Number 12416/90 and Indictment Number 12107/91. Defendant claims that he has received ineffective assistance of counsel and has submitted an affidavit stating that he was not advised of the immigration consequences of pleading guilty.

I

Defendant was born in Jamaica, and entered the United States without permission on February 16, 1989. He was deported to Jamaica on September 22, 1994, on the grounds of illegal entry into the United States and for three Kings County drug related convictions under Indictment Number 12416/90, Indictment Number 12107/91, and Docket Number 9K039933.

Defendant's 1990 case resulted after criminal activity on November 4, 1990. On that date, a police officer observed defendant sell crack cocaine to a buyer who was later arrested with the crack that he had bought from defendant. When defendant was arrested, he had thirteen bags of crack in his hand. Defendant was charged under Indictment No. 12416/90 with criminal sale of a controlled substance in the third degree and related crimes. On January 30, 1991, defendant pleaded guilty to attempted criminal sale of a controlled substance in the third degree, in satisfaction of the charges contained in Indictment Number 12416/90. Defendant was sentenced to one day in jail, followed by five years of probation.

Page 2

Additionally, defendant was charged under Indictment Number 12107/91 with criminal possession of a controlled substance in the third degree and related charges. The criminal activity took place on September 3, 1991, when a police officer arrested defendant with twenty plastic bags of cocaine in his pocket. On October 1, 1991, a bench warrant was ordered when defendant failed to appear in court. On April 4, 1994, defendant pleaded guilty to criminal possession of a controlled substance in the seventh degree, in satisfaction of the charges contained in Indictment Number 12107/91. The court sentenced defendant to one year in prison and resentenced defendant, under Indictment Number 12416/90, to a concurrent term of one year in prison.

In addition to the two Supreme Court convictions, defendant has two criminal court convictions. On January 14, 1991, in Kings County, under Docket Number 9K039933, defendant was convicted after trial of criminally using drug paraphrenalia, and was sentenced to six months in jail. Additionally, on September 17, 1998, under Bronx County Docket Number 98X059823, defendant pleaded guilty to criminal sale of marijuana in the fourth degree and was sentenced to time served.

Defendant was deported in 1994, but unlawfully re-entered the United States sometime in 1996. On November 16, 2010, he was arrested for illegal entry of a removed alien. On September 28, 2011, the United States Immigration and Customs Enforcement Agency ("ICE") reinstated defendant's 1994 order of removal. Defendant opposed deportation, and claimed that he would be subject to persecution or torture if he were returned to Jamaica. Defendant's motion was dated November 11, 2011.

On January 17, 2012, an immigration judge rejected defendant's claim opposing deportation and ordered defendant removed from the United States. This court received defendant's motion on February 1, 2012. Defendant was deported on March 8, 2012.

II

Defendant relies on Padilla v. Kentucky, 130 S. Ct. 1473 (2010), to support his claims that he received ineffective assistance of counsel for his convictions under Indictment Number 12416/90 and Indictment Number 12107/91. Padilla imposed an

Page 3

affirmative duty on defense counsel to provide accurate advice to non-citizen clients concerning the potential immigration consequences of a conviction. Defendant claims he was never advised of these consequences.

In response, the People first argue that the court should dismiss the motion to vacate since the defendant cannot obey the mandate of the court due to his removed status. The People rely on People v. Reid, 34 Misc. 3d 1234A (Queens Co. Crim. Ct. 2012) (court dismissed CPL 440.10 motion without prejudice, where defendant was no longer available to obey mandate of court after deportation to Jamaica). There, the court found that a motion to vacate requires that the defendant be...