The People Of The State Of N.Y. v. Sanchez, 757/91

• Decision Date: 10 November 2010
• Docket Number: 757/91
• Citation: 2010 NY Slip Op 51952
• Parties: The People of the State of New York v. Juan Carlos Sanchez, Defendant
• Court: New York Supreme Court

2010 NY Slip Op 51952

The People of the State of New York

v. Juan Carlos Sanchez, Defendant

757/91

Supreme Court Of New York

Queens County

Decided on November 10, 2010

The defendant is represented by Robert Didio, Esq.

The People are represented by Assistant District Attorney Daniel Bresnahan of the Queens District Attorney's Office.

Stephen A. Knopf, J.

The defendant, Juan Carlos Sanchez, has filed a motion with this Court, seeking an order of this Court vacating his judgment of conviction pursuant to CPL 440.10. The defendant argues that he was provided ineffective assistance of counsel because his attorney failed to inform him of the immigration consequences of his guilty plea. Additionally, the defendant claims that his plea was involuntary and not knowingly entered into because the Court failed to verify his citizenship status and failed to warn him of the immigration consequences of his plea. The People disagree.

FINDINGS OF FACT

This indictment arose out of an incident that took place on February 2, 1991, at approximately 9:45pm, in the vicinity of 47-05 45th Street, in Queens. On that date and time, the defendant approached Mr. Morales, who knew the defendant by first name and demanded the parka he was wearing. When Mr. Morales attempted to push the defendant away, the defendant began to repeatedly punch Mr. Morales in the face. An unapprehended male joined the defendant, and as the defendant held Mr. Morales, the unknown male slashed Mr. Morales in the face and coat. Mr. Morales was able to break away. Shortly thereafter, about a block away from the incident, Mr. Morales was able to point the defendant out to police, who then arrested the defendant.

As a result of this incident, the defendant was indicted forthe crimes of assault in the first degree, attempted robbery in the first degree, attempted robbery in the second degree, assault in the second degree and criminal possession of a weapon in the fourth degree.

On March 3, 1992, prior to trial, the defendant pled guilty before the Hon. Yorka Linakis, J.S.C. to each count in the indictment, with a promise of one and one-half to four and one-half years incarceration, the minimum sentence permitted by law on the top counts of assault in the first degree and attempted robbery in the first degree. The defendant allocuted to committing each and every offense charged. He waived his right to appeal.

On April 3, 1992, before the same court, the defendant was sentenced to the promised concurrent prison terms of one and one half to four and one half years on the assault in the first degree and attempted robbery in the first degree charges, one to three years on the assault in the second degree and attempted robbery in the second degree charges and one year on the criminal possession of a weapon in the fourth degree charge. The defendant did not receive youthful offender treatment. The defendant did not appeal this conviction.

The defendant submits he was born in England, (reflected in his 1992 pre-sentence report)and is a citizen of Spain. He maintains he is not a U.S. citizen. On May 11, 2010, the defendant was served with a Notice to Appear before an immigration judge of the United States Department of Justice for a removal hearing. The defendant asserts he was advised that he is subject to mandatory deportation. The defendant is currently in the custody of the Department of Homeland Security. The defendant is married and is a father of two children.

CONCLUSIONS OF LAW

CPL 440.10 governs the statutory mandates of vacating a judgment of conviction. It specifically provides, in pertinent part that:

1. At any time after the entry of a judgment, the court in which it was entered may, upon motion of the defendant, vacate such judgment upon the ground that:...(h)The judgment was obtained in violation of a right of the defendant under the constitution of this state or of the United States...2....[T]he 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 perfectedby him;...

CPL 440.30 governs the statutory mandates whereby a court sets aside a sentence. In pertinent part that:

1. A motion to vacate a judgment pursuant to section 440.10... must be made in writing and upon reasonable notice to the people. Upon the motion, a defendant who is in a position adequately to raise more than one ground should raise every such ground upon which he intends to challenge the judgment... If the motion is based upon the existence or occurrence of facts, the motion papers must contain sworn allegations thereof, whether by the defendant or by another person or persons. Such sworn allegations may be based upon personal knowledge of the affiant or upon information and belief, provided that in the latter event the affiant must state the sources of such information and the grounds of such belief. The defendant may further submit documentary evidence or information supporting or tending to support the allegations of the moving papers. The people may file with the court, and in such case must serve a copy thereof upon the defendant or his counsel, if any, an answer denying or admitting any or all of the allegations of the motion papers, and may further submit documentary evidence or information refuting or tending to refute such allegations. After all papers of both parties have been filed, and after all documentary evidence or information, if any, has been submitted, the court must consider the same for the purpose of ascertaining whether the motion is determinable without a hearing to resolve questions of fact....4. Upon considering the merits of the motion, the court may deny it without conducting a hearing if:

(a) The moving papers do not allege any ground constitutinglegal basis for the motion; or

(b) The motion is based upon the existence or occurrence of facts and the moving papers do not contain sworn allegations substantiating or tending to substantiate all the essential facts, as required by subdivision one; or...(d) An allegation of fact essential to support the motion (I) is contradicted by a court or other official document, or is made solely by the defendant and is unsupported by any other affidavit or evidence, and (ii) under these and all the other circumstances attending the case, there is no reasonable possibility that such allegation is true.

Criminal Procedure Law 220.50, raised by defendant in his application, describes the procedure by where a defendant may enter into a plea of guilty. Section 7, effective June 15, 1995 provide in relevant part:

"Prior to accepting a defendant's plea of guilty to a court or courts of an indictment... the court must advise the defendant on the record, that if the defendant is not a citizen of the United States, the defendant's plea of guilty and the court's acceptance thereof may result in the defendant's deportation, exclusion from admission to the United States or denial of naturalization pursuant to the laws of the United States. Where the plea of guilty is to a count or counts of an indictment charging a felony offense other than a violent felony offense as defined in section 70.02 of the penal law or an A-I felony offense other than an A-I felony as defined in article two hundred twenty of the penal law, the court must also, prior to accepting such plea, advise the defendant that, if the defendant is not a citizen of the United States and is or becomes the subject of a final order of deportation issued by the United States Immigration and Naturalization Service, the defendant may be paroled to the custody of the Immigration and Naturalization Service for deportation purposes at any time subsequent to the commencement of any indeterminate or determinate prison sentence imposed as a result of the defendant's plea. The failure to advise the defendant pursuant to this subdivision shall not be deemed to affect the voluntariness of a plea of guilty or the validity of a conviction, nor shall it afford a defendant any rights in a subsequent proceeding relating to such defendant's deportation, exclusion or denial of naturalization".

In reviewing the defendant's claim of ineffective assistance of counsel, this Court has considered the defendant's motion and reply, the defendant's affidavit, the defendant's plea minutes, the defendant's pre-sentence report, the defendant's sentencing minutes, documents related to the defendant's removal proceeding, the People's response, and the defendant's criminal history.

It is well-settled that a motion to vacate a judgment of conviction should not be "...employed as a substitute for direct appeal when defendant was in a position to raise an issue on appeal... or could have readily raised it on appeal but failed to do so...". People v Cooks, 67 NY2d 100, 103 (1986).

Indeed, even through defendant waived his right to appeal, a involuntary claim that a plea is involuntary could have been raised on appeal. See, eg, People v Murray, 2 AD3d 1160, 1161 (3d Dept 2003). A review of the plea and sentencing minutes reflect that the court did not advise the defendant of the immigration consequences of his plea. Here, sufficient facts appear in the record to permit adequate review of this claim. As such, the defendant could have raised this issue in a direct appeal. The defendant could have raised this claim on direct appeal.

This Court also notes that the defendant's claim that his plea was involuntary is supported by his own self-serving affidavit alone. No attorney's affidavit or other documentation is provided. Also, the defendant's claim is over 18 years old insofar...