The defendant moves pursuant to CPL §440.10(h) to either vacate and dismiss the judgment of conviction in this matter or grant an evidentiary hearing on this motion. He argues that his plea was not knowingly and voluntarily accepted given his then-attorney erroneously advised him that: (1) defendant could face up to seven years in jail after a jury trial on misdemeanor charges as a first-time offender; and (2) he would not suffer any negative immigration consequences as a result of his guilty plea. On November 28, 2007, defendant was arrested and charged with two counts of aggravated harassment in the second degree (PL §240.30(1)(a)), one count of stalking in the fourth degree (PL §120.45(1)) and two counts of harassment in the second degree (PL §240.26(1)). The accusatory instrument dated November 29, 20019 states that the defendant called the complaining witness on the telephone and stated in sum and substance: “I’m going to beat the shit out of you,” on November 20, 2007; “If I have to kill you, I would to get Demitri. I’ll sent you away in a box” on November 22, 2007, and “No matter where you go, I’ll find you. You can’t hide anywhere” on November 26, 2007. The accusatory instrument further states that the complaining witness recognized the caller’s voice as being that of the defendant. On April 22, 2008, the People dismissed the two counts of aggravated harassment in the second degree and defendant pled guilty to one count of harassment in the second degree (PL §240.26(1)) in satisfaction of all charges. He was sentenced to time already served and a twoyear order of protection.1 Defendant alleges that his first attorney, Japheth Baker from the Legal Aid Society (LAS), was conflicted off his case given LAS previously represented defendant’s ex-wife in a criminal matter. On March 24, 2008, Glendoval Stephens appeared to represent defendant. On that day, defendant alleges that Mr. Stephens informed him that he needed to take the plea bargain offered by the People as it would be his only chance to avoid jail time. The defendant responded that he needed time to think about it so the matter was adjourned to April 22, 2018. In the interim, defendant met with Mr. Stephens where he alleges Mr. Stephens told him that he would face one to seven years in jail if convicted after a jury trial. Defendant alleges he told Mr. Stephens that he only returned the complaining witnesses’ phone calls because they have a child together and at no point did he harass, threaten or intimidate her. Defendant alleges that Mr. Stephens then advised him that the plea would be his best chance to avoid jail time and that the plea would not affect his immigration status. On Mr. Stephens’ advice, defendant entered a plea of guilty to harassment in the second degree (PL §240.26 (1)). Thereafter, defendant retained Mr. Stephens to represent him in a divorce action.2 Defendant alleges that after his divorce was finalized in April 2017, he consulted with John C. Iwutl, an immigration attorney to work on adjusting his immigration status. It was then that defendant alleges he learned that the conviction affected his immigration status and made him deportable3. Defendant alleges that he would not have taken the plea if he knew that it would make him deportable; he avers that he was innocent and would have risked a trial. Defendant alleges that his ex-wife had a history of lying and that she was arrested several times for stealing and fraud. Defendant alleges that he has lived in the United States since 1997, pays child support and is the custodial parents of two daughters age six and three. He is currently engaged to be married and has not been arrested or had any contact with law enforcement since the instant matter. In response, the People contend that defendant’s claims are meritless given there was strong evidence against him. The People argue that defendant was facing a maximum sentence of 1 year in jail if convicted after trial of an A misdemeanor, and 90 days if convicted after trial of a B misdemeanor, in addition to having a permanent criminal record. The People contend that even if Mr. Stephens did advise defendant that he faced up to seven years in jail, his own affidavit establishes that he didn’t want to risk even one year in jail, and accordingly, fails to establish that he would not have pled guilty and would have proceeded to trial. The People then set forth the evidence they would have submitted in support of the charges had there been a trial, which include telephone records that show the blocked calls at the time of the alleged incidents. The People argue that the complainant was cooperative and was willing to testify at trial. If the case proceeded to trial, the People would have made a Molineux application to introduce three prior incidents of domestic violence, which include allegations that defendant slapped the complainant, tried to push her out of a car, put a knife to her throat, smashed her hand in a door, kicked her and punched her, causing visible swelling to her face. The People submit that the complaining witness does not have a criminal record and attach a redacted record of her arrests and prosecution. (Peoples Exh. V) They further contend that because LAS represents litigants in non-criminal matters, there is no support for defendant’s contention that LAS was conflicted off the case due to a prior criminal arrest of the complaining witness. The People contend that they were unable to procure an affirmation from Mr. Stephens, but that they spoke to him on August 22, 2019. During the call, Mr. Stephens stated that he did not recall any specific conversations with defendant, but is generally aware of immigration consequences, which he discusses with his clients. He also stated that he knows that an A misdemeanor conviction would be punishable by no more than one year in jail and that he never would have advised a client that he would face seven years of incarceration if convicted. (Tillander Aff. at 17) The People argue that Mr. Stephens provided effective and meaningful representation, as defendant was able to plead guilty in return for a substantially reduced sentence: a violation and time served vs. one year in jail and a permanent criminal record. Failure to Procure an Affirmation from Prior Counsel The People argue that pursuant to CPL §440.30(4)(d) the court may consider the merits of the motion without conducting a hearing if an “allegation of fact essential to support the motion (i) is contradicted by a court record 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.” The People contend that the defendant’s failure to submit an affirmation from Mr. Stephens or Mr. Baker should result in dismissal on procedural grounds, relying on People v. Scott, 10 NY2d 380 (1961) and People v. Stewart, 295 AD2d 249 (1st Dep’t 2002). Both cases are distinguishable. People v. Scott involved a coram nobis proceeding where the Court of Appeals held that it was not error for the lower court to require the defendant to provide an affidavit from his attorney, or make a good faith effort to do so, prior to being granted a hearing. People v. Scott, 10 NY2d at 382. In affirming the lower court’s decision, the Court of Appeals noted that if defendant requested such an affidavit, and the lawyer declined, “there would have be time enough to consider whether to grant a hearing at which the lawyer’s attendance might be compelled by compulsory process.” Id. In People v. Stewart, the defendant moved under CPL §440.10 claiming ineffective assistance of counsel. People v. Stewart, 295 AD2d at 249. At issue were strategic decisions made by the defendant’s attorney, such as deciding not to call certain witnesses. The court held that defendant’s papers were deficient in that he failed to provide affirmation from his attorney explaining the basis for his strategic decisions or an explanation for the absence of such an affirmation. People v. Stewart, 295 AD2d at 249-50. In this instance, it appears that Mr. Stephens declined to provide an affirmation, which could be remedied by compulsory attendance, where he would be subject to cross-examination as to his recollection of his representation of defendant in this matter.4 Subsequent cases have amplified upon this distinction. In Rosa v. Herbert, the court noted New York’s trend to not preclude a hearing based on a defendant’s failure to produce an attorney affidavit. Rosa v. Herbert, 277 F.Supp.2d 342, 353 (S.D.NY 2003). In People v. Radcliffe, the defendant moved to vacate his judgment of conviction alleging ineffective assistance of counsel and failed to produce an affidavit from trial counsel or explain his failure to do so. People v. Radcliffe, 298 AD2d 533, 534 (2d Dep’t 2002) The court distinguished People v. Scott, noting that Scott involved a coram nobis proceeding where the defendant did not allege ineffective assistance of counsel, but rather alleged that the prosecutor broke his sentencing promise. Id. In that instance, it would be “natural” for defendant to “support his application with an affidavit of the living and available defense attorney who reported the plea offer” to defendant. Id. However, where “defendant’s application is hostile to his trial attorney,” requiring an affidavit from trial counsel or require defendant to explain his failure to so “is wasteful and unnecessary.” Id.; see also, People v. Mebuin, 158 AD3d 121, 127 (1st Dep’t 2017). Similarly in this instance, defendant has alleged that Mr. Stephens provided ineffective assistance of counsel, an application that is hostile to Mr. Stephens. Accordingly, obtaining an affirmation or affidavit in support would in large part be futile. Further, the People and defendant’s attorneys accounts as to their conversation with Mr. Stephens differ, requiring his testimony. Ineffective Assistance of Counsel CPL §440.10(h) states that “[a]t an 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.” “The right to effective assistance of counsel is guaranteed by the Federal and State Constitutions (US Const 6th Amend; NY Const, art I, §6). People v. McDonald, 1 NY3d 109, 113 (2003). Under the Federal Constitution, the test for determining the validity of a guilty plea lies in whether such plea “represents a voluntary and intelligent choice among alternative courses of action open to the defendant.” Id., citing, Hill v. Lockhart, 474 U.S. 52, 56 (1985). The Strickland5 test is employed for such analysis, which requires a showing that (1) counsel’s performance was deficient and fell below an objective standard of reasonableness and (2) prejudiced the defense in that “there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Id., citing, Hill v. Lockhart, 474 U.S. 52, 59 (1985). The New York standard is more flexible and focusses on whether the defendant received “meaningful representation” such to ensure that he received a “fair trial,” rather than a “particular impact on the outcome of the case.” People v. Henry, 95 NY2d 563, 565-566 (2003), citing, People v. Benevento, 91 NY2d 708,714 (1998). The Court of Appeals has previously recognized the differences between the federal and New York standard and “has consistently adhered to the application of [New York's] ‘meaningful representation’ test.” People v. Henry, 95 NY2d at 566. Application of Padilla v. Kentucky In Padilla v. Kentucky, the United States Supreme Court held that a defendant receives ineffective assistance of counsel when his or her attorney fails to advise them that a guilty plea will subject them to deportation. Padilla v. Kentucky, 559 U.S. 356 (2010). The Court of Appeals subsequently held that the Padilla rule is not retroactive. People v. Baret, 23 NY3d 777, 781-82 and 800 (2014). Decision/Findings In this instance, defendant pled guilty to harassment in the second degree (PL §240.26 (1)) in 2008, prior to Padilla. Accordingly, the required analysis is not whether defendant was informed that his guilty plea would subject him to deportation, but rather whether he was given misadvice to constitute “ineffective assistance of counsel” under the federal and New York state guidelines set forth above. People v. McDonald, 1 NY3d 109, 113 (2003); People v. Henry, 95 NY2d 563, 565-566 (2003). Counsel for the defendant argues that defendant has satisfied both the federal and New York standard. He contends Mr. Stephens’ affirmative misrepresentations fell well below the objective standard of reasonableness. He maintains that, absent the misadvice, defendant would have insisted on going to trial and likely would have prevailed given the complaining witness (defendant’s ex-wife) “is known to lie and manipulate the government system for her own benefit.” (Schiff Aff. 9). The defendant avers that he has not been arrested since this incident, which was over 10 years ago. For these reasons, counsel argues that defendant was denied meaningful representation given he relied on Mr. Stephens’ incorrect advice to his detriment. Accordingly, defendant seeks a hearing to establish that it is more than a reasonable probability that but for his attorney’s misadvice and error, he would not have pled guilty. The People’s argument, that it is “highly unlikely” that defendant would not have pled guilty had he not received immigration misadvice, is based on conjecture. The statements allegedly made by defendant were over the telephone from blocked phone numbers (People Aff. at 10), and in essence would have involved a credibility determination had the matter been tried. The defendant’s position has merit. The defendant has set forth sufficient basis to entitle him to a hearing. People v. Disla, 2019 N.Y.Slip.Op. 04995 (1st Dep’t June 20, 2019); People v. George, 56 Misc 3d 1127, 1135 (Crim. Ct. NY Cty. 2017) Accordingly, it is hereby ORDERED that the defendant’s motion to vacate and dismiss the judgment of conviction pursuant to CPL §440.10(h) is granted to the extent that a hearing will be scheduled to determine the issues set forth in the body of this decision and order; and it is further ORDERED, that any relief not expressly granted herein is denied. The foregoing is the decision and order of the court. Dated: September 30, 2019 New York, New York
