People v. Rodriguez

  Before the court is a motion by the defendant seeking an order vacating his 2002 misdemeanor guilty plea on the basis that it was entered into by him in violation of his rights under the United States Constitution and the New York State Constitution. Specifically, he argues that his attorney at the time of the guilty plea mis-informed him of the immigration implications of pleading guilty to a misdemeanor in 2002. Defendant states that now, seventeen years later and as a result of the 2002 guilty plea, he is subject to deportation by the United State Department of Homeland Security and if his guilty plea stands, he will be deported. Defendant asserts that such deportation would be cruel and unusual punishment, as prohibited by the United States and New York State Constitutions. Case History This criminal matter was commenced by the filing with this Court of an accusatory instrument alleging that on August 6, 2002, the defendant committed the class A Misdemeanor of NYS Penal Law 221.05 Endangering the Welfare of a Child and the violation of NYS Penal Law §221.05, Unlawful Possession of Marijuana. At the time of the arrest, the defendant was issued an appearance ticket for each of the charges. The accusatory instrument alleges that the defendant possessed “a small plastic bag of marijuana” and alleged that he was, “smoking a marijuana joint while holding a 5-month-old baby in his lap and a 3-year-old sitting next to him.” On August 20, 2002 the defendant was arraigned on the charges, entered pleas of not guilty to both charges, and was released on his own recognizance. According to the court’s records, the Columbia County Public Defender’s office appeared on behalf of the defendant, however, there appears to be no record (or recollection by the defendant) as to which assistant public defender appeared on behalf of the defendant in 2002. At the September 17, 2002 court appearance, the defendant pled guilty to Endangering the Welfare of a Child, such plea covering the marijuana violation. The court fined the defendant $100.00 plus the mandatory state surcharge. On or about April 13, 2019 the court received a notice of motion seeking an order vacating of the defendant’s plea pursuant to NY Criminal Procedure Law §440.10(1)(h), on the grounds that, “the judgment was obtained in violation of a right of the defendant under the constitution of this state or of the United States.” The motion was made returnable on May 2, 2019.   On May 2, 2019 counsel for the People and the defendant appeared, and at which time a briefing schedule was agreed upon. On May 16, 2019, the defendant submitted a memorandum of law in support of the motion. On June 2, 2019, the court received an affirmation in opposition to the motion from the People. On June 28, 2019, the court received reply affidavits from James P. Milstein, Esq. and Robert Linville, Esq. on behalf of the defendant. On August 29, 2019 further argument was heard by the court on the motion, the parties were provided an opportunity to submit a supplemental memorandum of law, and the decision on the motion was reserved by the court. On September 12, 2019 the court received a supplemental memorandum of law from defense counsel. On September 27, 2019, the court received a letter from the People stating that they did not intend to make any further submissions in the matter. Factual Background of Case The defendant states that at the time of his arrest in 2002, he was 38 years old, was not a citizen, but had been living in the United States since he was six years old. The defendant further states that at the time he entered his plea of guilty to the A Misdemeanor, he informed his attorney that he was not a United States citizen and asked his attorney if his ability to remain in the United States would be advisedly affected by the proposed guilty plea, to which the defendant states that his attorney replied that the plea would not adversely affect his immigration status¹. Defendant further states that in September 20, 2017 the United States Department of Homeland Security commenced a removal proceeding against him based upon the 2002 guilty plea to Endangering the Welfare of a Child. The defendant also states that he is currently released on his own recognizance but is required to appear at the Immigration Court in Buffalo, New York². Defendant asserts that at the time he entered his plea of guilty, he was not provided thorough and correct legal advice regarding the collateral consequences to his plea to the class A Misdemeanor, in that it is consider a “crime against a child” under immigration law and therefore a deportable offense.³ Defendant also states that at the time of his guilty plea, the court did not make any inquiry as to the possibility of deportation as a result of the plea⁴. Defense counsel asserts that if the defendant is deported, he would be deported to a country where he has no family ties since all members of his surviving family are in the United States⁵. Issues of Law In support of his motion, the defendant argues that his guilty plea was obtained in violation of his rights under the United States Constitution or the New York State Constitution. Specifically, the defense argues that the failure of defense counsel to ascertain the defendant’s specific immigration status and defense counsel’s failure to correctly advise the defendant as to the immigration consequences of his guilty plea, was a deficient performance⁶ and therefore in violation of his rights under the Sixth Amendment to the United States Constitution. The defendant further argues that the consequence of deportation is “cruel and unusual punishment” and is severely disproportionate for an class A Misdemeanor conviction and therefore in violation of the defendant’s rights under the defendant’s Eighth Amendment to the United States Constitution⁷. In opposition to the motion, the People assert that the defendant’s motion must be denied for various reasons: that the motion was not properly made under NY Criminal Procedure Law §440.10; that the defendant has not alleged facts that his plea was not “knowingly, voluntarily intelligent”; that a judgment of conviction is presumed valid and the defendant bears the burden of coming forward with sufficient allegations to create an issue of act; that this plea predates that landmark case of People v. Padilla 599 US 356 (2010), as interpreted in Chaidez v. United States, 568 US 342 (2013) and therefore the defendant cannot benefit from the Padilla holding; that the defendant failed to include an affidavit from his counsel at time of taking his guilty plea, and that it appears that at the time of the defendant’s guilty plea, it appears that his legal counsel gave him the best information available since at the time of the defendant pleading guilty, such plea would not have subjected the defendant to removal proceedings; that the defendant’s claim of ineffective counsel is without merit since the defendant failed to demonstrate that his attorney’s representation “fell below an objective standard of reasonableness;⁸“ that under the New York standard, a defendant is not required to fully satisfy the prejudice test of Strickland⁹ but rather the only question is whether the attorney’s conduct constituted egregious and prejudicial error such that defendant did not receive a fair trial (citing People v. Benevento, 91 NY2d 708 (1998) and People v. Caban, 5 NY3d 143 (2005); that in fact defendant’s legal counsel did provide effective counsel at time of the defendant entering his guilty plea, since the defendant received a sentence of only a fine and surcharge, while he could have been sentenced up to one year in jail; and that seventeen years have passed since the defendant entered his guilty plea and thus the People would be severely prejudiced if the plea was vacated and the People were required to be put to their proof. Discussion Defendant asserts that virtue of the fact that is legal counsel at the time of the defendant’s guilty plea misadvised him as to the immigration consequences of his guilty plea, his attorney performance failed to meet the standard set forth in Strickland¹⁰, “The benchmark for judging any claim of ineffectiveness of counsel must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result¹¹.” It appears to be undisputed that in 2002, defense counsel did not routinely advise defendants of immigration consequences of pleading guilty to a crime. So, the question before the court is, based upon the allegations and recollection of the defendant, that the advice given to the defendant by his attorney prior to his entry of the guilty plea was so deficient, that it meets the Strickland benchmark. Strickland provides the court the proper standard for judging attorney performance as that, “of reasonably effective assistance, considering all the circumstances. When a convicted defendant complains of the ineffectiveness of counsel’s assistance, the defendant must show that counsel’s representation fell below an objective standard of reasonableness¹².” As to the sufficiency of defense counsel’s performance at the time the defendant entered his plea of guilty, it is unfortunate that neither the defendant, the public defender’s office nor the court is able to ascertain which attorney appeared on behalf of the defendant at the time he entered his guilty plea. Exactly what was discussed or was not discussed between the defendant and his attorney may never be ascertained. However, the court agrees with the People that the defendant, as the moving party, has the burden to come forward with sufficient allegations in support of the motion. Here the defendant has failed to do so. Furthermore, in light of the United State Supreme Court’s holding in Chaidez¹³ that Padilla is not retroactive, and since defendant’s guilty plea predates Padilla, the defendant cannot benefit from Padilla. In Chaidez, the United States Supreme Court applying the principles set out in Teague v. Lane¹⁴, held that the Padilla holding was not retroactive since it neither “places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe” nor did Padilla create “[a] watershed rules of criminal procedure.” See People v. Pena, where the Second Department held, “[i]t is now settled that the Padilla decision does not apply retroactively in state court postconviction proceedings” citing People v. Baret¹⁵ and People v. Andrews¹⁶. With regard to the defendant’s contention that the immigration consequences of his guilty plea constitute cruel and unusual punishment in violation of his rights under the United States Constitution and the New York State Constitution, this argument requires greater scrutiny. The Eighth Amendment to the United States Constitution which applies to the states by virtue of the Fourteenth Amendment¹⁷ states that, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The New York State Constitution, Article 1, Section 5 echoes the Eighth Amendment to the United States Constitution by stating, “Excessive bail shall not be required, nor excessive fines imposed, nor shall cruel and unusual punishments be inflicted, nor shall witnesses be unreasonably detained.” The Federal Courts which have interpreted the Fourth Amendment, have taken narrow view as to what constitutes cruel and unusual punishment. In Ingraham v. Wright, 97 S.Ct. 1401 (1977) the United States Supreme Court stated that: [T]he Cruel and Unusual Punishments Clause circumscribes the criminal process in three ways: First, it limits the kinds of punishment that can be imposed on those convicted of crimes, e. g., Estelle v. Gamble¹⁸…Trop v. Dulles¹⁹…second, it proscribes punishment grossly disproportionate to the severity of the crime, e. g., Weems v. United States²⁰…and third, it imposes substantive limits on what can be made criminal and punished as such, e. g., Robinson v. California²¹…[t]he primary purpose of [the Cruel and Unusual Punishments Clause] has always been considered, and properly so, to be directed at the method or kind of punishment imposed for the violation of criminal statutes”, citing Powell v. Texas²². The application of a defendant’s Eighth Amendment protection from cruel and unusual punishment regarding deportation appears to be well settled. Federal Courts have long held that immigration removal is not considered a punishment for constitutional purposes²³. The Federal Courts have based this upon the logic that “[t]he purpose of deportation is not to punish past transgressions but rather to put an end to a continuing violation of the immigration laws.”²⁴ This Court cannot concur is such logic when applying the protections of Article 1, Section 5 of the New York State Constitution to immigration removal. It should be noted that in determining the scope and effect of the guarantees of fundamental rights of the individual under the New York Constitution, New York courts can exercise their independent judgment and are not bound by a decision of the Supreme Court of the United States limiting the scope of similar guarantees in the Constitution of the United States²⁵. However, there is only a small body of New York case law applying the protections of Article 1, Section 5 of the New York State Constitution, and there is a dearth of cases applying Article 1, Section 5 protections to immigration removal. Here, the defendant is facing a recent threat of deportation as a result of fifteen-year-old plea of guilty to a misdemeanor. The combined elements of the severity of the punishment and the inordinate delay in the imposition of deportation creates a de facto punishment which is cruel and unusual to the degree that it is unconstitutional under Article 1, Section 5 of the New York State Constitution. The court understands that at the time of the 2002 guilty plea the offense of Endangering the Welfare of a Child was deemed a “an offense against a child” and thus a crime of “moral turpitude” and a deportable offense under federal immigration law. The court further understands that at the time of the guilty plea, the enforcement policy of the United States government was not to bring deportation proceedings against individuals having defendant’s status. It appears the federal government’s discretion of not enforcing the immigration law lasted for approximately fifteen years subsequent to the date of the defendant’s guilty plea. Now, fifteen years later, the defendant is facing delayed enforcement. The current policy of strict and delayed enforcement was unforeseeable fifteen years ago. The defendant alleges that he has been in the United States since the age of six and he has no surviving family members in the country of his birth. From the defendant’s perspective, deportation is the equivalent of exile to a foreign land. Truly a serious consequence, “the equivalent of banishment or exile.”²⁶ This delay, in conjunction with the de facto punishment of removal of the defendant from the United States (his home since the age of six) to a land foreign to him based upon a fifteen-year-old misdemeanor conviction is so inherently cruel and unusual, that it violates Article 1, Section 5 of the New York State Constitution. The court is hard pressed to envision another scenario where a de facto penal consequence to a guilty plea is delayed fifteen years after sentencing. The delayed immigration consequences to the defendant’s guilty plea resulted in a “grossly disproportionate punishment to the severity of the crime” to which the defendant plead guilty²⁷. As the United States Supreme Court said in Bridges v. Wixon²⁸: “Though deportation is not technically a criminal proceeding, it visits a great hardship on the individual and deprives him of the right to stay and live and work in this land of freedom. That deportation is a penalty — at times a most serious one — cannot be doubted. Meticulous care must be exercised lest the procedure by which he is deprived of that liberty not meet the essential standards of fairness.” As to the People’s argument that the instant motion was improper since it was not made under NY Criminal Procedure Law §440.10, the court finds no basis for this contention. The notice of motion clearly states that the motion is being brought pursuant to NY Criminal Procedure Law §440.10(1)(h), that, “the judgment was obtained in violation of a right of the defendant under the constitution of this state or of the United States.” Therefore, it held that the motion was properly noticed and brought before the court. As to the People’s argument that the defendant failed to allege that his plea was not knowing and voluntary, this argument is also faulty. The People state in their affirmation in opposition to the motion that, “[a]t the time, this plea and offense would not have subjected the defendant to removal proceedings, since it was not considered an aggravated felony offense or crime of moral turpitude (under 8 USCA §1227).”²⁹ The defendant argues to the contrary: that it was a deportable offense in 2002 since the guilty plea was a plea to a crime considered to be “an offense against a child” under immigration law. Potential deportation only imposed fifteen years later was an unforeseeable consequence of the defendant’s guilty plea in 2002. The court cannot consider the defendant’s 2002 guilty plea to be “knowingly” if he did not and apparently could not have known that his plea would subject him to deportation fifteen years later. The People also make issue of the fact that the defendant failed to include an affidavit from his legal counsel who represented him at the time of his guilty plea, and this failure should be a basis for denying the defendant’s motion. If the court adapted this argument, injustice would result. The court’s record does not indicate who the defendant’s counsel was at the time of his guilty plea and the affirmation of Robert Linville, Esq., former Columbia County Public Defendant, affirms that his office does not have such records, and it would be unreasonable to expect the defendant to remember who his attorney was seventeen years ago. Having denied the defendant’s motion on the basis of ineffectiveness of counsel, the other arguments of the People regarding the defendant arguing that his Sixth Amendment rights were violated are moot. The People also argue that the People would be severely prejudiced if the plea was vacated and the People were required to be put forth their proof after seventeen years have passed since the guilty plea was taken. The court understands this, but the court must weigh the defendant’s constitutional rights against the prejudice to the People in meeting their burden of proof, and the court finds the defendant’s constitutional rights paramount. In light of the foregoing, the court grants the defendant’s motion to vacate his guilty plea on the grounds that consequence of deportation seventeen years after entering a guilty plea to a class A Misdemeanor is, de facto, cruel and unusual punishment and thus violative of the defendant’s rights under the Eighth Amendment to the United States Constitution as well as in violation of the defendant’s rights under Article 1, Section 5 of the New York State Constitution. The parties are directed to appear in court on November 14, 2019 for further proceedings including the entry of the defendant’s plea to the two counts. The foregoing constitutes the opinion, order and decision of this Court. Dated: November 7, 2019 Hudson, New York