On remittitur from the Appellate Division, First Department, People v. Johnson, 177 AD3d 484 (1st Dept. 2019), defendant moved to vacate his guilty plea under C.P.L. §440.10(1), claiming that he was prejudiced by the immigration advice of one of his prior attorneys gave him.1 After conducting a hearing and reviewing the extensive briefing, the Court concludes that the defendant has failed establish that there is a “reasonable probability that he would not have pleaded guilty had he been made aware of the deportation consequences of his plea.” Id. The motion to vacate the guilty plea is DENIED. THE HEARING TESTIMONY Defendant was the first witness to testify at the hearing.2 He was born in Kingston, Jamaica, in mid-1990. H1 at 11. His father died when he was four or five years old and, after that, he moved from household to household, without a “proper steady house.” H1 at 12. He had four siblings on his father’s side — whom he knew, but “not well” — and, by the time of the hearing, five siblings on his mother’s side. H1 at 12. The family was poor. H1 at 13. Defendant described a violent social environment in the area where he grew up — “shots,” people “laying on the street,” and “blood shed every day.” H1 at 13. He ascribed much of this violence to political conflict between the two major political parties in Jamaica at that time. H1 at 14. He stopped attending school when another customer was “execute[d]” while defendant was in a barber shop. H1 at 14. This occurred when defendant was fifteen or sixteen years old; he was that same age in 2006 when his mother emigrated to the United States with defendant’s older brother. H1 at 15. The mother left defendant behind, along with his younger sister. Defendant first resided with an older sister but left when her boyfriend attacked him. H1 at17. After that, he lived with a relative of their mother. H1 at 15. Defendant had a construction job; this, combined with money that his mother and older brother sent, provided sufficient support for defendant and his sister. H1 at 15. Defendant again described a violent political environment, in which individuals would be forced to join one of the political parties, although it was unclear whether he was recounting his own experience or the general experience of young men in Kingston at that time: “It’s like, if it come to you — if they come to you they would take your mom, tell your mom tell your son to come outside. They say if your mom deny them it can lead to blood shed.” H1 at 17.3 In 2007, one of his brothers, a cab driver, was murdered during a robbery. H1 at 18. Defendant claimed that political violence deterred him from attending the funeral. Defendant also described an episode around the same time in which the relative caring for him, who was by then quite ill, witnessed a shooting in which two people were killed. H1 at 19. She died soon thereafter. H1 at 19. After the relative died, defendant moved to a rural area more than two hours from Kingston. H1 at 19. His sister did not accompany him. At first, defendant’s new residence was peaceful, and he was able work as a fisherman and “straighten[] out [his] life.” H1 at 20. But eventually violence erupted there, as well. Defendant ascribed this to the 2010 extradition to the United States of a major drug trafficker. H1 at 20-21. Defendant’s mother had petitioned for him to join her in the United States, and eventually, in February of 2011, he received permanent resident status and was able to emigrate, along with his sister. H1 at 21-22. Defendant left behind an eight-month-old son. H1 at 39. Defendant and his sister lived with their mother and another sibling in the Bronx, and he quickly found employment at a landscape company. H1 at 22-23. After about two years there, he began working at a warehouse, but lost that job in 2014. H1 at 23. He also became romantically involved with an American-born girlfriend, and they had a daughter in the summer of 2015. H1 at 23. Defendant was arrested in the instant case in March of 2016. His first lawyer was a Legal Aid attorney named David Smiley. H1 at 24. According to the defendant, Mr. Smiley asked him whether he was a United Sates citizen and, when the defendant replied that he was not, Mr. Smiley told him that he should not leave the country. According to the defendant, that was the only immigration advice Mr. Smiley gave him. H1 at 24. When he was arraigned in Supreme Court, defendant received a written Notice of Immigration Consequences. H1 at 25. He read that document, but did not understand it, and did not ask Mr. Smiley to explain it. H1 at 25, 46. Defendant thereafter lost his copy of the Notice. H1 at 25. Defendant eventually did ask a subsequent attorney to explain the Notice of Immigration Consequences; he acknowledged that his attorney explained it, H1 at 47, but “d[id]n’t rightly remember” what the lawyer told him. H1 at 26. Defendant soon replaced Mr. Smiley with another attorney, Ben Abulut, whom his mother hired. H1 at 26. Mr. Abulut was an immigration attorney, who told him that he would likely be placed in deportation proceedings as a result of this case. H1 at 27. Defendant fired Mr. Abulut after less than two weeks because he did not want an immigration lawyer; he wanted an attorney who “understood criminal cases.” H1 at 28. On redirect examination, defendant reaffirmed that he did not “want an immigration attorney at that time.” H2 at 5-6. Defendant’s mother subsequently hired Paul Brenner, a criminal lawyer. H1 at 28. On January 10, 2017, defendant was present in court with Mr. Brenner when the judge advised the defendant that the drug charges he faced were “automatically deportable.” H1 at 29. Defendant understood that this meant that “I would get deported.” H1 at 29. But when he asked Mr. Brenner about this, he recalled Mr. Brenner saying, “don’t worry about it, everything is going to be all right,” which Defendant understood to mean “everything was going to be fine.” H1 at 30-31. Although Mr. Brenner told the defendant that he “most likely” would be deported, defendant believed that this meant that he would eventually be sent to immigration custody but would “have a chance to have bail and fight the [deportation] case.” H1 at 31, 53. Three weeks later, defendant returned to court and pled guilty. H1 at 32. At the hearing, defendant reiterated — as reflected in the transcript of the guilty plea — that Mr. Brenner had told him that he would “most likely be deported” and that defendant interpreted that to mean that “everything going to be fine [sic], don’t worry about it.” H1 at 33. However, defendant could not recall ever asking Mr. Brenner any questions about immigration consequences prior to his plea of guilty. H1 at 33-34. He also acknowledged that, when he pled guilty, the judge asked him whether he wanted to plead guilty “regardless of any immigration consequences that may result,” and defendant answered “yes.” H1 at 35. Defendant did not stop to ask his attorney for clarification. H1 at 36. He claimed that he believed that his attorney’s different advice meant that, after “six months” defendant would be released on bail from immigration so that he could fight deportation “from the outside.” H1 at 36. During the plea colloquy, defendant asked the judge whether the promised sentence could be two consecutive city years, instead of two years in state prison; at the hearing, he claimed that this request was motivated by a desire to facility family visits and was unrelated to immigration issues. H1 at 36-38, 63. When asked at the hearing why he pled guilty in this case, he replied that he pled guilty so that he could “be there for his daughter,” and also reiterated that he believed that he would be released to immigration custody and be bailed out from there within six months. H1 at 40. He also claimed that he only learned that he faced mandatory deportation with “no chance” of relief once he arrived in immigration custody. H1 at 41. He claimed that, had he understood this, he would have taken this case to trial because he had “nothing to lose.” H1 at 42. Defendant also claimed that around the time of his guilty plea, Jamaica was still very violent and that he could well have been targeted by one of the political parties if he returned there. H1 at 43. On cross-examination, defendant acknowledged that, at the time of his guilty plea in this case, he also had two open cases in the Bronx. H1 at 44. In one of those cases, the result of a June 22, 2014, arrest, the indictment charged him with attempted second-degree murder. H1 at 55. Defendant understood that he faced a long prison sentence on that charge. On April 13, 2016, just one month after his arrest in this case, he was again arrested in the Bronx, and charged with second-degree assault and criminal possession of a weapon in the third degree. H1 at 55-56. Paul Brenner represented the defendant in those cases, as well. H1 at 56. Mr. Brenner negotiated favorable guilty pleas in both of the Bronx cases. The attempted-murder case resolved with a plea to attempted criminal possession of a weapon in the second degree and a sentence of one year in jail, to run concurrently with the sentence in this case. H1 at 56. The second-degree assault case resolved with a plea to a weapon-possession charge with a sentence of 60 days’ jail to run concurrently to the other two sentences. H1 at 57. Those pleas took place shortly after the defendant’s guilty plea in this case. Defendant also acknowledged that when he pled guilty in the Bronx cases the judge told him it “it was mandatory deportation.” H2 at 8, 11. Defendant also testified that he understood that, as a result of the plea bargains that Mr. Brenner negotiated, he would serve a maximum of two years in jail for all three cases. H1 at 57. He also understood that if he did not accept the package deal that Mr. Brenner worked out, he was “gonna get more time.” H2 at 17, 18. The second witness at the hearing was defendant’s sister, Shaneka. H2 at 21. She corroborated details about the defendant’s family and immigration to the United States. H2 at 23. She also corroborated defendant’s account of the violence in Jamaica around the time their mother emigrated to the United States and defendant’s claim that that Jamaica was not a safe place for him in 2016 or 2017. H2 at 27. But she also admitted that, although she spoke with two of Mr. Johnson’s attorneys after his arrest, Mr. Smiley and Mr. Brenner, she did not bring up any immigration concerns. H2 at 26. LEGAL DISCUSSION The Court does not credit defendant’s post hoc assertion that he would not have pled guilty in this case if he had understood that deportation was a mandatory — and not merely a “likely” — collateral consequence of his guilty plea. To the contrary, the hearing record reveals that, at the time of his plea, defendant’s primary concern was minimizing his prison exposure, and that he was largely indifferent to any immigration consequences. Moreover, a review of the factors set out in People v. Martinez, 180 AD3d 190, 193 (1st Dept. 2020), confirms that there is no “reasonable probability” that defendant would not have pled guilty had his attorney given him correct advice. His motion to vacate his plea of guilty is accordingly denied. 1. The Legal Standard Where a court fails to properly advise a defendant of the immigration consequences of a guilty plea, the “defendant must show that there is a reasonable probability that he or she would not have pleaded guilty and would have gone to trial had the trial court informed the defendant of potential deportation.” People v. Peque, 22 NY3d 168, 198 (2013). In determining whether the defendant has shown such prejudice, a court should consider, among other things, the favorability of the plea, the potential consequences the defendant might face upon a conviction after trial, the strength of the People’s case against the defendant, the defendant’s ties to the United States and the defendant’s receipt of any advice from counsel regarding potential deportation. This assessment should be made in a commonsense manner, with due regard for the significance that potential deportation holds for many noncitizen defendants. Id. at 199. Peque turns on a due process analysis, the standard applicable when considering whether a guilty plea was knowing and voluntary. Id. at 192. Where the misadvice came from counsel, and not the court, the legal analysis turns on the federal and state rights to effective counsel, and not on the fundamental fairness of the plea proceeding itself. Padilla v. Kentucky, 559 U.S. 356, 366 (2010). The prejudice determination under a Padilla claim is whether “a decision to reject the plea bargain would have been rational under the circumstances.” People v. Lujan, 114 AD3d 963, 964 (2d Dept. 2014). This, in turn, requires the defendant to “pro[ve] that he would not have pleaded guilty but for the incorrect advice.” People v. Gonzalez, 176 AD3d 589 (1st Dept. 2019). The Padilla prejudice analysis considers more than the “defendant’s alleged lack of a viable defense and the likelihood he would have been convicted after trial”; it must also take into account “the particular circumstances of defendant’s desire to remain in the United States.” People v. Lantigua, 184 AD3d 80, 82 (1st Dept. 2020). “A defendant must convince the court that a decision to reject the plea bargain would have been rational.” See also People v. Martinez, 180 AD3d 190, 193 (1st Dept. 2020): In that regard, appropriate factors to be weighed include, among others, evidence of defendant’s incentive, at the time of his plea, to remain in the United States rather than his native country; his respective family and employment ties at the time of his plea, to the United States, as compared to his country of origin; the strength of the People’s case; and defendant’s sentencing exposure. Id. But, ultimately, Padilla “has not diluted defendant’s burden to demonstrate a reasonable probability that he would not have pleaded guilty but for counsel’s poor advice.” People v. Hernandez, 22 NY3d 972, 976 (2013). This, standard, naturally, turns on the hearing court’s “credibility determination” of the defendant’s prejudice claim. Id. at 974, 975. See also People v. Samuels, 143 AD3d 401, 403 (1st Dept. 2016); People v. Gaston, 163 AD3d 442, 446 (1st Dept. 2018). See, e.g., Dominicus v. Wallace, 2015 WL 9703430 at *7, 11 (E.D. Mo. 2015) (defendant’s claim of Padilla prejudice was not credible). 2. Defendant’s Claim that He Would Not Have Pled Guilty if He Had Received Correct Immigration Advice is Not Credible. The Court does not credit defendant’s claim that he would have rejected the proposed resolution of this case had his third attorney advised him that deportation was mandatory, and not merely likely. Rather, the record shows that defendant’s main concern at the time of the plea was to minimize the time he spent in prison, a goal that even the defendant acknowledged was furthered by pleading guilty in this case. The Court therefore finds that defendant has failed to establish a reasonable probability that he would not have pleaded guilty but for his attorney’s incorrect advice. People v. Aguilera, 153 AD3d 638 (2d Dept. 2018); People v. Brooks, 243 AD2d 149 (1st Dept. 1996). First, the totality of the record reveals that defendant displayed very little interest in immigration consequences at the time of his plea. This renders incredible his claim that he would not have pled guilty had his lawyer correctly advised him about immigration consequences. The record support for the Court’s credibility finding includes the following: First, the record reveals that defendant had genuine lack of curiosity, let alone concern, for any immigration consequences during the entire time this case was pending. For example, although defendant admitted receiving and eventually reading a Notice of Immigration Consequences, he claimed that he did not understand it but never asked either of his first two attorneys to explain it to him. He then lost the document and, it seems, never asked for another copy. Although he claimed he eventually asked his final attorney about it, he could not recall what the attorney told him. Had defendant been truly concerned about immigration consequences he surely would have raised his concerns with at least one of his attorneys, one of whom was an immigration attorney, before deciding whether to plead guilty. Second, defendant’s lack of concern about immigration consequences is also revealed by the fact that he fired his immigration attorney after just a few weeks. Immigration concerns simply did not weight heavily, or even at all, in the defendant’s decision making at that time. Third, it is significant to the Court’s credibility analysis that, shortly after this case concluded, defendant pled guilty in his two Bronx cases, even though the judge there told him that deportation would be mandatory as a result of those pleas. Defendant argues that the Court cannot consider this fact as direct evidence on the question of prejudice because those guilty pleas occurred after this one, and the prejudice determination must be made based on the information in place at the time of the plea. Defendant’s Post-Hearing Memorandum at 31-32. But there is nothing preventing the Court from considering this aspect of defendant’s testimony on the question of the defendant’s credibility. And, as to that, the Court finds that the defendant’s testimony that he was willing to plead guilty in his Bronx cases knowing that the result would be mandatory deportation fully discredits his claim that he would not have pled guilty in this case had he understood that deportation was mandatory. Fourth, the record also reveals that defendant had a concern other than immigration consequences at the time he pled guilty; his primary concern was to minimize his prison exposure. His hearing testimony that his true goal was to avoid deportation is simply false. This is revealed in several aspects of the record, in particular: (1) defendant’s recognition that if he did not plead guilty in all three cases he face “more time”; (2) his own request at the time of this plea for city time, which he surely knew, as the court observed at the time, would be “less time than two state years,” Hearing Exhibit D at 8;4 (3) his attorney’s remarks before the plea that the defendant “asked me to see if I can do better than two years,” and that defendant did not “understand why he is not getting a non-jail sentence or one year in jail because he has no prior record,” Hearing Exhibit D at 5, and; (4) defendant’s stated belief that the advice that he would “likely” be deported meant only that he would be released from immigration custody in a few months so that he could fight his deportation “from the outside.” He never once testified that he understood his attorney’s advice to mean that he would be able to avoid deportation altogether. Together, these facts persuade the Court that defendant’s current claim that he would not have pled guilty had his attorney told him that deportation was mandatory is unworthy of belief. 3. The Defendant Received Correct Immigration Advice Before He Pled Guilty. The Court next finds that defendant was twice given correct advice about the immigration consequences of his plea by others, advice that he simply chose to disregard. Where a defendant was “indisputably aware indisputably aware of [the] possible [immigration] consequences” before he entered his plea, he “cannot show prejudice resulting from his attorney’s alleged failure to provide that advice himself.” People v. Rampersaud, 121 AD3d 731 (2d Dept. 2014). In fact, even in Padilla itself, the Court remanded for a prejudice inquiry only where “[n]either counsel nor the court” informed the petitioner that he faced deportation. 599 U.S. at 369, emphasis added. See also People v. Marryshow, 135 AD3d 964 (2d Dept 2016) (defendant could not establish ineffectiveness where court correctly advised him of immigration consequences). The Court’s finding on this issue is borne out by the record in the two ways. First, the Notice of Immigration Consequences correctly explained the consequences of a conviction, and defendant admitted reading it. While it is true, as defendant argues, Post-Hearing Brief at 23-24, that the Notice did not indicate that the specific Penal Law sections under which defendant was charged were deportable offenses, or warn him, by name, that he faced mandatory deportation, the Notice was nevertheless legally sufficient to put the defendant on notice that this was true. If defendant had had any questions about the meaning of the form, he could have asked either of his first two attorneys — one of whom was an immigration attorney — to explain it. And, if it is even true that he in fact asked his third attorney about the Notice, as he claimed at the hearing, he would surely have remembered that attorneys’ response if he truly cared about immigration consequences. Thus, nothing in the record contradicts the Court’s finding that the Notice of Immigration Consequences correctly warned the defendant that he faced mandatory deportation. Second, the judge in this very case told him that deportation was mandatory; defendant nevertheless decided to plead guilty and told the judge that he wished to do so irrespective of any immigration consequences. Defendant’s response to this particular set of facts is to argue that the judge’s warning that “the drug offense is an automatic deportable offense” was “unclear.” Post-Hearing Brief at 27, 30. This borders on the absurd; even though the indictment included more than one drug offense, the warning obviously meant that any of the drug offenses with which the defendant was charged could trigger “automatic” deportation. The defendant ultimately agreed to plead guilty to a “drug offense,” and the record is devoid of any evidence that the defendant was confused about the relationship between his decision to plead guilty and the warning that the court gave him. Nor is the Court persuaded by defendant’s equally spurious claim that the judge’s use of the word “may” — instead of “will” — during the plea allocution somehow lulled him into the incorrect belief that deportation was not mandatory. Post-Hearing Memorandum at 30. In context, the phrase “may result” clearly meant “will happen in the future,” and not “might not happen at all.” Thus, when the court asked the defendant, “And do you wish to plead guilty regardless of any adverse immigration consequences that may result?” and defendant, who had already been warned that deportation was mandatory, answered, “Yes,” Hearing Exhibit D at 12, defendant was acknowledging that he understood that he would, in fact, be deported as a result of his plea. The judge confirmed this just before concluding the plea colloquy by asking, “Has everything I’ve said to you up till now been clear to you and do you understand it?” The defendant answered, “Yes.” Hearing Exhibit D at 16. 4. The Martinez Factors Do Not Establish Prejudice. Finally, a review of the factors set out in Martinez, 180 AD3d at 193, confirms this calculus. The first factor is “evidence of the defendant’s incentive at the time of his plea, to remain in the United States rather than his native country.” Id. The defendant came to the United States at a relatively young age, reunited with his family, and seems to have quickly found work and assimilated. But these obvious — and nearly universal — benefits to living in the United States instead of elsewhere are not alone sufficient to support a finding of prejudice. Defendant argues that his fear of political violence in Jamaica gave him a “strong incentive” to remain in the United States. Post-Hearing Brief at 16-17. But the Court finds that defendant has exaggerated this concern. His hearing testimony revealed that, despite the political violence, he was able to find his way to a residence outside of Kingston that was not affected by that violence, and where he was able to live and work in safety. And although he described a flare-up of violence that affected this new residence in or around 2010, that violence was the result of a particular, isolated incident — the extradition of a Jamaican drug dealer to the United States — and was not a manifestation of the enduring political violence that he and his sister claimed still affected the country in 2016 and 2017. Defendant adduced no evidence that this extradition was still a source of nationwide violence in Jamaica some six or seven years after it occurred. Nor does the second Martinez factor, defendant’s “respective family and employment ties at the time of his plea, to the United States, as compared to his country of origin,” show that the defendant suffered prejudice. First, the defendant was able to find employment in Jamaica that was not materially different than the type of employment that he found here: construction work, then work as a fisherman, in Jamaica, versus landscaping and warehouse work in the United States. Defendant argues that his jobs in Jamaica paid less than his jobs in the United States, as evidenced by the fact that he had to rely on financial assistance from his family while there. Post-Hearing Brief at 16-17. But, in fact, even in the United States, defendant was still relying on family support, as he lived in his mother’s apartment. In any event, defendant was employed in Jamaica when he left there, but had been unemployed in the United States for about two years before this arrest, so this factor does not weigh heavily in his favor. Next, balancing the record evidence relating to defendant’s comparative family ties does not support a claim that there is a reasonable probability that the defendant would not have pled guilty had his attorney told him that deportation was mandatory. While defendant had a mother, a child, and at least one sibling here, he also he had paternal half-siblings and a son in Jamaica, with whom he maintained close ties. Finally, the remaining Martinez factors, “the strength of the People’s case, and defendant’s sentencing exposure,” further urge the conclusion that defendant has failed to establish a reasonable probability that he would have taken this case to trial had his third attorney told him that deportation was mandatory. Defendant does not even attempt to argue that the case against him was anything other than strong, only that the strength of the case was “never tested.” Post-Hearing Brief at 18. But this is true in every case raising a Padilla claim, because in all such cases the defendant has pled guilty. In fact, there is no credible argument that the case against the defendant was weak: he was present in an apartment where drugs, cash and drug paraphernalia were recovered, and admitted that they were his.5 Defendant’s sentencing exposure, while a bit more complex than in the typical case, nevertheless further demonstrates a lack of prejudice. Defendant was promised, and received, a sentence of two years’ imprisonment to be followed by two years’ post-release supervision. While it seems unlikely that, as a first felony offender, he would have received a more severe sentence than that had been convicted after trial, even though the sentence could have been as long as nine years, there is more to the calculus than this one case. Defendant’s plea here was coupled with pleas in two very serious and violent Bronx cases, in which his attorney — the same attorney who negotiated this plea — was able to secure the promise of short sentences on drastically reduced charges that would be concurrent to, and in fact merge with, the state prison sentence in this case. Both logic and the defendant’s own testimony confirm that he would have faced “more time” overall if he had declined to plead guilty. And, as noted above, the Court has already concluded that the hearing record demonstrates that defendant’s primary concern at the time of this plea was to minimize the amount of time he spent incarcerated. It is quite clear that, through the highly effective negotiations of his third attorney, he achieved this outcome. Given this, the “sentencing exposure” factor also demonstrates that there is no reasonable probability that defendant would have gone to trial in this case had his attorney given him correct immigration advice. 5. Conclusion Defendant’s claim that he would not have pled guilty had his attorney correctly advised him that deportation was mandatory is not credible. He displayed virtually no interest in immigration consequences at the time, while repeatedly demonstrating his desire to minimize the time he would spend in prison, and it is clear from the record that the guilty plea in this case was the surest means of achieving this goal. Defendant also received correct immigration advice from sources other than his attorney before he pled guilty, and a review of the factors set out in Martinez, 180 AD3d at 193, in no way establishes prejudice. Accordingly, the defendant’s motion to vacate his plea of guilty is denied. CONCLUSION Defendant’s motion to vacate his guilty plea is denied. This constitutes the Decision and Order of the Court. Dated: January 13, 2022
