DECISION AND ORDER Defendant Rodrigo Perez moves, pursuant to section 440.10 of the Criminal Procedure Law, to vacate a judgment convicting him, after a guilty plea, of criminal sale of marijuana in the fifth degree, a class B misdemeanor, and sentencing him to a conditional discharge and $250 fine. He contends that his attorney provided affirmative misadvice by stating that his conviction would not result in adverse immigration consequences. The People oppose defendant’s motion on the grounds that it is unsubstantiated and otherwise without merit. After a thorough review of the motion papers, papers on file with the court, prior court proceedings including an evidentiary hearing, and the recent CPL 440.10 amendments, this Court is compelled to vacate defendant’s judgment of conviction. I. Background and Procedural History 1. The Instant Arrest Defendant was arrested on February 12, 2001, in Queens County after allegedly handing a quantity of marijuana to an undercover police officer. He was charged with criminal sale of marihuana in the fifth degree and unlawful possession of marihuana. Although the minutes of the proceeding are unavailable, defendant pleaded guilty to the top count, a class B misdemeanor, only eight days after his arrest, on February 20, 2001, and was sentenced on the same date. 2. The CPL 440.10 Motion In 2016, defendant was placed in deportation proceedings when attempting to reenter the country upon returning from a trip to his native Colombia. Pursuant to the Notice to Appear filed by officials from the Department of Homeland Security (“DHS”), it is alleged that he was removable from the United States under section 1227 (a) (2) (B) (i) of Title 8 of the United States Code, which renders deportable any noncitizen “who at any time after admission has been 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 802 of title 21), other than a single offense involving possession for one’s own use of 30 grams or less of marijuana” (8 U.S.C. §1227 [a] [2] [B] [i]). The Notice to Appear further alleged that defendant is independently deportable based on his two convictions for promoting prostitution, both of which precede the instant conviction (8 U.S.C. §1227 [a] [2] [A] [ii]. The record is unclear as to whether defendant is attempting to vacate those convictions as well. Defendant filed his motion pursuant to CPL 440.10 on April 1, 2019, claiming that his plea attorney advised him to plead guilty and assured him that he would suffer no immigration consequences as a result. He maintains that but for such erroneous advice, he would not have pleaded guilty. He further asserts that the trial court did not notify him of the possible immigration consequences. Defendant also represents that the plea transcript is unavailable. The People, in its response filed July 17, 2019, oppose defendant’s motion. The People argue that defendant’s motion should be denied because his claims are unsubstantiated, untimely and meritless. By decision and order dated October 18, 2019, this Court ordered a hearing to determine the merits of defendant’s motion. 3. The CPL 440.10 Hearing On December 2, 2019, this Court commenced a hearing, which continued and concluded on December 4, 2019. Defendant, the sole defense witness, testified on his own behalf. The People called one witness: Peter Scott Dufault, of Queens Defenders.1 This Court finds the testimony of both credible to the extent indicated herein. Regarding defendant’s background, he is a native of Colombia and unlawfully entered the United States in 1986. Initially, he resided and worked in California eventually becoming a legal permanent resident circa 1991. Defendant then moved to New York, where he met his future wife; they married in 2001. Defendant further testified that, in 1992, he was twice convicted of promoting prostitution. He asserted, though, that his involvement was limited to distributing pamphlets to pedestrians. As to the instant conviction, defendant was arrested after offering a lit marihuana cigarette to an undercover officer. Defendant testified that he received the cigarette from an acquaintance and merely offered to share it with the officer — not sell it. Defendant further testified that prior to entering his guilty plea, he had only a brief conversation with his plea attorney, whose name he did not recall, and who informed him that he would not face adverse immigration consequences as a result of his plea. At the time, defendant did not speak much English and did not recall an interpreter being present during the proceedings. Defendant unequivocally stated that he pleaded guilty solely based on his attorney’s advice and would not have done so had he known of the adverse immigration consequences that would result from a marijuana sale conviction. The notice of appearance contained in the court file indicates Mr. Dufault was defendant’s attorney. Mr. Dufault testified, however, that he was unable to locate his office’s case file, had no independent recollection of the case, and could not be certain he represented defendant at the plea proceeding. It was possible, Mr. Dufault suggested, that one of his colleagues had represented defendant at the plea proceeding. Mr. Dufault testified that since 2001, immigration law has significantly changed. As such, advice provided to clients about immigration was not as prevalent as it has been since the Supreme Court’s decision in Padilla v. Kentucky (559 US 356, 368-69 [2010]). With respect to any interaction with defendant, Mr. Dufault stated that although he speaks some Spanish, he would have used an interpreter if discussing immigration consequences with a client. Additionally, Mr. Dufault indicated that while he would ordinarily attempt to avoid a drug sale plea by negotiating a possession charge, there were situations where he would have advised some clients to accept a plea to a sale charge. He further indicated that he may have informed clients in possession of small amounts of marijuana that a guilty plea would not adversely affect their immigration status. During oral arguments, this Court inquired of counsel whether defendant’s two previous convictions for promoting prostitution were contributing to his immigration status. Counsel represented that this conviction is the sole basis for his removal proceeding. II. Discussion A criminal defendant is entitled to effective assistance of counsel under both the Federal and New York State Constitutions. “A defendant who claims to have been denied effective assistance [under the Federal Constitution] must show both that counsel performed deficiently and that counsel’s deficient performance caused him prejudice” (Buck v. Davis, __ US__, 137 S Ct 759, 775 [2017], citing Strickland v. Washington, 466 US 668, 687 [1984]). Under the New York Constitution, a defendant is entitled to “meaningful representation” of counsel (People v. Baldi, 54 NY2d 137, 147 [1981]). This standard requires “reasonable competence, not perfect representation” (People v. Carver, 27 NY3d 418, 422 [2016] [internal quotation marks omitted]). This means that “[s]o long as the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation, the constitutional requirement will have been met” (Baldi, 54 NY2d at 147). As applied to the plea process, “[t]he Sixth Amendment guarantees a defendant the effective assistance of counsel at critical stages of a criminal proceeding, including when he enters a guilty plea” (Lee v. United States, __ US __, 137 S Ct 1958, 1964 [2017] [internal quotation marks omitted]). In Padilla, the Supreme Court held that when deciding whether to plead guilty, a noncitizen defendant is entitled to advice from his lawyer about the potential immigration consequences that may ensue from the conviction (Padilla, 559 US at 368-69). In reaching this conclusion, the Court observed that “[t]he landscape of federal immigration law [had] changed dramatically over the last ninety years” (id. at 360). Because of this, the Court reasoned, defense attorneys have a Sixth Amendment obligation to provide “accurate legal advice” about the immigration consequences of a conviction to defendants who are contemplating pleading guilty (id. at 364). This ruling, though, was a novel one. Prior to Padilla, state and lower federal courts had “almost unanimously concluded that the Sixth Amendment [did] not require attorneys to inform their clients of a conviction’s collateral consequences, including deportation” (Chaidez v. United States, 568 US 342, 350-51 [2013]).2 But, the Supreme Court had never explicitly addressed the issue. Since Padilla announced a rule that “[broke] new ground,” the Supreme Court subsequently held that under federal retroactivity principles, the rule did not apply to convictions that were already final at the time Padilla was decided (id. at 353) (internal quotation marks omitted). In other words, a defendant whose conviction was final could not avail himself of the Padilla decision on federal habeas corpus review. And, although states are permitted to give broader effect to newly announced federal constitutional rules by giving them retroactive application even when the Supreme Court has held otherwise (see Danforth v. Illinois, 552 US 264, 282 [2008]), the New York Court of Appeals declined to do so (see People v. Baret, 23 NY3d 777 [2014]). The Court of Appeals continued to articulate its concern regarding the disastrous “entanglement” of immigration law with criminal law in its decision in People v. Peque, 22 NY3d 168, 175 (2013). Peque imposed a strict obligation on New York courts to advise criminal defendants of the possibility of deportation as a result of their pleas.3 Finding that “[p]resent-day immigration law and enforcement practice impose what can only be described as an enormous penalty upon noncitizen convicts” (id. at 189), the Court reasoned that for a plea to be knowing, voluntary, and intelligent, it must be preceded by an allocution from the court regarding immigration consequences. In keeping with the national trend towards recognizing the importance of immigration laws in the criminal justice system, the Legislature, in 2019, enacted changes to CPL 440.10 with the apparent intent of making post-conviction relief available to defendants facing collateral consequences from their convictions, including immigration consequences (see CPL 440.10 [1] [j] ["There shall be a rebuttable presumption that a conviction by plea to [a class A or unclassified misdemeanor entered prior to the enactment of this paragraph] was not knowing, voluntary and intelligent, based on ongoing collateral consequences, including potential or actual immigration consequences”]; People v. Quezada, 65 Misc.3d 141(A), 2019 N.Y. Slip Op. 51710(U), *2 [App Term, 1st Dept 2019] ["Finally, we note that if defendant's guilty plea in this case actually results in immigration consequences…he has a remedy pursuant to the newly enacted amendments to CPL 440.10 (1) (j), which provides for a motion to vacate the conviction for a class A or unclassified misdemeanor based upon ongoing collateral consequences, including potential or actual immigration consequences"]). In other words, the Legislature filled the gap left open where criminal convictions deemed final prior to Padilla could not be retroactively challenged through collateral motions. These changes, although inartfully worded and structured (see William C. Donnino, Practice Commentary, McKinney’s Cons Laws of NY, Penal Law §70.15 [Note: online version] ["the wording of CPL 440.10(1)(j) is problematic…"], evince an “intent [] to enable those facing deportation for a misdemeanor conviction before the effective date of the statute [April 12, 2019] to have their conviction reduced to a lesser offense or to be resentenced ‘in accordance with the amendatory provisions of subdivision one-a of section 70.15 of the penal law’” (id.). Thus, a review of defendant’s claim, based solely upon case-law prevalent prior to the enactment of the 2019 amendments to CPL 440.10, would place this Court in an untenable position: decide whether an attorney provided immigration misadvice 20 years ago based on a now sharply divergent standard absent a record, clear memories, or any statutory guidance. Indeed, Mr. Dufault acknowledged that immigration law has evolved considerably since 2001 and that advice given then would not necessarily be correct today. Defendant may well have been advised to plead guilty to Penal Law §221.35, the information’s top count — a class B misdemeanor drug sale. But this is inconsistent with Mr. Dufault’s testimony that he would generally, though not always, attempt to obtain a possession offense plea. And, in contrast to the relative strength of his motion, several lapses in defendant’s memory and testimony bear on his credibility. With the advent of the legislature’s recent transparent attempt to expand the relief available to litigants under CPL 440.10, however, this Court would be remiss to ignore it. Simply put, there is no question that defendant’s claim falls under the rubric laid out in CPL 440.10 (1) (j). The problem is the statute’s inclusion of class A and unclassified misdemeanors, but its inexplicable omission of class B misdemeanors. “When presented with a question of statutory interpretation, our primary consideration ‘is to ascertain and give effect to the intention of the Legislature’” (Matter of DaimlerChrysler Corp v. Spitzer, 7 NY3d 653, 660 [2006], quoting Riley v. County of Broome, 95 NY2d 455, 463 [2000]). “The starting point for discerning legislative intent is the language of the statute itself” (Yatauro v. Mangano, 17 NY3d 420, 426 [2011] quoting Roberts v. Tishman Speyer Props, LP, 13 NY3d 270, 286 [2009]). Further, “Courts must harmonize the various provisions of related statutes and…construe them in a way that renders them internally compatible” (id.) (citations omitted). When the Legislature created a presumption that any plea to a class A or unclassified misdemeanor entered prior to April 2019 resulting in collateral consequences was presumptively unknowing, it made the determination that the societal interest in finality of convictions was outweighed by the harm brought upon defendants suffering from those consequences. In other words, the Legislature concluded that class A misdemeanors, the most serious category of misdemeanors, could be overturned under the newly created presumption when such convictions led to, for example, adverse immigration consequences. But what the Legislature either failed to appreciate or, more likely, erroneously overlooked was that those same immigration consequences could be visited upon a defendant by lower classes of misdemeanors. Specifically, as is the case here, defendant would have been deportable under section 1227 (a) (2) (B) (i) of Title 8 of the United States Code, regardless of whether he was convicted of an A or B misdemeanor (see 8 U.S.C. §1227 [a] [2] [B] [i]). Thus, if the legislature intended to shield criminal defendants from adverse immigration consequences as a result of misdemeanor marijuana offenses, it utterly failed to do so where defendants were convicted of the class B criminal sale of marijuana. As drafted, the practical effect of subsection J is that a defendant is worse off being convicted of a class B misdemeanor than he would have been had the conviction been for a class A misdemeanor merely because it only provides relief under the latter. This nonsensical result violates principles of equity and fairness (see Solem v. Helm, 103 S Ct 3001, 3011 [1983] ["Few would dispute that a lesser included offense should not be punished more severely than the greater offense"]), as well as fundamental principles of statutory interpretation, which seek to “to avoid an unreasonable or absurd application of the law” (People v. Santi, 3 NY3d 234, 244 [2004] [internal quotation marks omitted]). Indeed, this disparity of treatment simply does not pass the common sense test; greater consequences for lesser offenses is an obvious violation of the notion of equality, especially when that consequence — deportation — is one the Supreme Court has called “severe” (Padilla, 559 US at 365). As a result, in keeping with the principle that “[s]tatutory language is generally to be construed in accordance with its plain and obvious sense, and the meaning attached to it should be neither strained nor artificial” (Shoreham-Wading River Cent School Dist v. Town of Brookhaven, 107 AD2d 219, 223 [2d Dept 1985]), this Court is constrained to find that criminal sale of marijuana in the fifth degree is a crime the legislature must have intended to be included under CPL 440.10 (j). And, because defendant is facing collateral consequences as a result of his plea to the top count in conjunction with the unavailability of the plea minutes and disparate recollections, this Court has little difficulty in ascertaining both prejudice and that with a full awareness of the immigration consequences of a guilty plea, “a decision to reject the plea bargain would have been rational” (Lee, 137 S Ct at 1968 [internal quotation marks omitted]). The inescapable conclusion, then, is that defendant’s plea was unknowing and involuntary. III. Conclusion For the reasons stated, defendant’s motion to vacate his judgment of conviction is therefore granted, and the accusatory instrument is dismissed (CPL 440.10 [4]). This constitutes the decision and order of the Court. Dated: August 11, 2020
