OPINION OF THE COURT
Introduction
Defendant Jose Garcia has submitted a CPL article 440 motion which calls upon this court to decide whether the United States Supreme Court’s recent decision in Padilla v Kentucky (559 US —,
Defendant, through newly retained counsel, has submitted a CPL 440.10 motion, dated June 30, 2010, seeking to vacate his judgment of conviction on the grounds of ineffective assistance of counsel in that counsel failed to advise him about the immigration consequences triggered by his 2008 guilty plea to a controlled substance offense. The People have submitted an affirmation and memorandum of law dated August 16, 2010 in opposition to that motion. The court heard oral argument from both sides on August 16, 2010.
On May 24, 2006 defendant is alleged to have been observed by a Detective Ryan selling cocaine to two apprehended buyers in Kings County. Defendant was indicted on two counts each of criminal sale of a controlled substance in the third degree (Penal Law § 220.39 [1]), criminal sale of a controlled substance in the fifth degree (Penal Law § 220.31) and criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03). On February 27, 2008, while represented by Andrew Stoll, Esq.,
“mr stoll: Yes. I discussed that extensively with my client as well as with an attorney he hired for the immigration matter and he spoke with that attorney and he’s accepting the offer. So with the Court’s permission—
“the court: Well, I have two things to say about that. One is that I can’t make any representations about what immigration would do and I understand he’s got independent immigration counsel and that’s fine, but a controlled substance conviction can certainly lead to deportation and I don’t want him to have any doubt about the fact that I can’t promise or guarantee anything about what immigration will do on [account] of this case or this conviction or any of his other issues with immigration and, as far as I’m concerned, he can assume that he’s deportable. That’s the first thing.” (Feb. 27, 2008 plea minutes at 2-3.)
Defendant in his 440 papers alleges that at some point prior to his plea he asked his attorney about the immigration consequences of a guilty plea but his attorney admitted that he was ignorant concerning immigration law, declined to research the
Although a lawful permanent resident of the United States since 2005, defendant is a native citizen of the Dominican Republic. Subsequent to his plea and sentence in this case, believing that his 2008 plea would not cause any immigration issues, he traveled outside the United States and attempted to reenter this country at JFK International Airport on April 13, 2010. He was arrested on April 14, 2010 by officials of Immigration and Customs Enforcement of the United States Department of Homeland Security (ICE) and charged with violating section 212 (a) (2) (A) (i) (I) (commission of a crime of moral turpitude) and (II) (commission of a crime relating to a controlled substance) of the Immigration and Nationality Act (INA). (8 USC § 1182 [a] [2] [A] [i] [I], [II]; see 8 USC § 1227.) According to defendant’s present attorney the charge relating to the commission of a crime of moral turpitude, for defendant’s 1996 New
Padilla v Kentucky
Prior to Padilla, it was well-settled in New York that deportation was a collateral consequence “peculiar to the individual’s personal circumstances and one not within control of the court system” and accordingly the failure by a defendant’s attorney to warn the defendant of the possibility of deportation was not grounds to claim ineffective assistance of counsel. (People v Ford,
The defendant in Padilla was a lawful permanent U.S. resident and a Vietnam veteran who pleaded guilty to a drug offense.
Explaining the Court’s holding, Justice Stevens, writing for the majority in Padilla, noted that federal immigration law had changed dramatically over the past 90 years and that “immigration reforms over time have expanded the class of deportable offenses and limited the authority of judges to alleviate the harsh consequences of deportation. The ‘drastic measure’ of deportation or removal is now virtually inevitable for a vast number of noncitizens convicted of crimes.” (Padilla, 559 US at —,
The Court noted that it had given “serious consideration” to the concerns that it was inviting a “floodgate” of litigation in
Ineffective Assistance of Counsel and Retroactivity
Under the federal standard for ineffective assistance of counsel a reviewing court must engage in a two-prong analysis. The court must first determine whether counsel’s performance was deficient, and second, whether a defendant suffered actual prejudice as a result of counsel’s deficiency (the Strickland test). Under New York law the analysis is somewhat different. A defendant’s right to the effective assistance of counsel will be satisfied “[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.” (People v Baldi,
The two pivotal cases addressing the retroactive effect of new decisions dealing with constitutional criminal procedure are Teague (supra) and People v Eastman (
While it is clear that when a court overturns its own precedent a new rule is established (see Saffle v Parks,
Conclusions
After careful consideration this court finds that Padilla did not create a new rule, despite the fact that in New York and federal courts deportation was considered merely a collateral consequence. Padilla, I conclude, applied its Strickland precedents to a new set of facts. I read Padilla’s majority opinion, at its core, to hold that, since the severe changes affecting immigration law in recent years, the Strickland standards have not been met where defense attorneys failed to give correct advice to clients in criminal cases facing deportation, when the immigration consequences were readily ascertainable, as they were in Padilla and in Garcia. Further, the majority plainly declared that the distinction between collateral and direct consequences of a criminal conviction was ill-suited to the immigration context, and that the distinction between no advice and misadvice leads to absurd results. For these reasons and others
Having concluded that Padilla must be applied retroactively, this court must now apply the federal Strickland and the New York State Baldi ineffective assistance of counsel tests to the instant case. The court must decide the effect of defense counsel’s advice to Garcia that he should seek outside immigration advice.
The court must next decide whether defendant suffered prejudice under the second prong of Strickland.
It is disingenuous for the People to call the evidence overwhelming when during the plea the People were unable to answer satisfactorily the court’s inquiry about why such a favorable disposition was being offered and whether there was any connection to a known scandal involving the Brooklyn South Narcotics Unit of the New York City Police Department which resulted in many indictments being dismissed during that general time period. Even as late as August 16, 2010 the prosecutor could provide the court during oral argument of this motion with no information on that issue.
A more difficult issue for this court in determining whether defendant suffered prejudice was that the court gave defendant deportation warnings during his plea and defendant chose to ignore them and follow contrary advice. In United States v Bhindar (
Nevertheless, adhering to the strict requirements of Padilla, I hold that where, as here, defendant is found in fact to have been misled by bad advice from a so-called retained specialist and by a lack of advice from his defense attorney, the court’s general warning will not automatically cure counsel’s failure nor erase the consequent prejudice.
Notes
. Defendant was represented by two different attorneys before Mr. Stoll: one at arraignment and one who unsuccessfully moved to dismiss the indictment pursuant to CPL 30.30 and to suppress the recovered physical property.
. Defendant has not appealed his judgment of conviction or engaged in any other postconviction litigation.
. Although there is no affirmation from trial counsel I find that there is no need to order an evidentiary hearing. (See CPL 440.30 [5].) It is clear from the record that counsel did not offer any immigration advice to Garcia but rather directed him to seek advice from an immigration attorney and further that Garcia relied on the erroneous advice of the latter (who is now referred to as a “paralegal”) to his detriment. The court notes that if an evidentiary hearing was in fact ordered it would be logistically difficult to have a defendant produced by immigration for the purposes of that hearing. Moreover, CPL 440.30 (5) provides that defendant has a right to be present at such hearing but may waive such right in writing. “If he does not so waive it and if he is confined in a prison or other institution of this state [and defendant is now in custody in Pennsylvania], the court must cause him to be produced at such hearing” (emphasis added). The People in their opposition papers allege they have spoken with Mr. Stoll but on account of confidentiality, “the People have no specific information concerning the content of those communications.” (People’s mem of law at 3-4.)
. Executive Office for Immigration Review.
. While the People question that claim, the court does not doubt that he would never have traveled outside the United States had he been correctly advised that his 2008 controlled substance conviction rendered him both deport-able and inadmissable. Moreover, it is clear to this court from the age of the case and from the plea proceeding itself that a primary concern of defendant was the immigration issue.
. Padilla was transporting a large amount of marihuana in his tractor trailer. (559 US at —,
. The court noted that Padilla’s crime, like virtually every drug offense except for the most insignificant marihuana offenses, was a deportable offense under 8 USC § 1227 (a) (2) (B) (i). (Padilla v Kentucky, 559 US at —,
. “The passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (TIRIRA’) and the Antiterrorism and Effective Death Penalty Act of 1996 (‘AEDPA’), however, has altered the landscape of immigration law” (Zhang v United States,
. The Padilla Court stated:
“Immigration law can be complex, and it is a legal specialty of its own. Some members of the bar who represent clients facing criminal charges, in either state or federal court or both, may not be well versed in it. There will, therefore, undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain. The duty of the private practitioner in such cases is more limited. When the law is not succinct and straightforward (as it is in many of the scenarios posited by Justice Alito), a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear.” (Padilla v Kentucky, 559 US at —,130 S Ct at 1483 .)
. The People complain that Padilla has resulted in a number of recent related 440s and that the application of Padilla retroactively could damage a defense attorney’s reputation despite counsel’s reasonable reliance on New York law when the plea was negotiated. Moreover, attorneys would have to attempt to recall events from many years earlier, plea minutes may have never been transcribed and old stenographic notes are frequently lost. In addition the People would be unduly prejudiced owing to the passage of time and witnesses may not be identified and located or their memories may have faded dramatically. The Court finds none of these grounds legally persuasive on the issue of retroactivity, at least as far as this Garcia case is concerned, since they have little or no bearing on Garcia. More importantly, however, the Court concludes that Padilla did not set forth a new rule, but rather applied its well-settled Strickland test to this immigration-related context.
. Teague does not constrain the authority of state courts to give broader effect to rules of constitutional criminal procedure than is required by Teague. (See Danforth v Minnesota,
. A rule is “substantive” rather than “procedural” if it alters the range of conduct or class of persons that the law punishes. (See Schriro v Summerlin,
. Under Teague a new rule, like an old rule, should be applied retroactively under two circumstances. The first is “if it places ‘certain kinds of primary, private individual conduct beyond the power of the criminal lawmaking authority to proscribe.’ ” (Teague v Lane,
. A state conviction becomes “final” for purposes of the Teague retroactivity rule when the availability of direct appeal to the state courts has been exhausted and the time for filing a petition for a writ of certiorari has elapsed or a timely filed petition has been denied. (See Beard v Banks,
. In a concurring opinion in Padilla (which Chief Justice Roberts joined) Justice Alito wrote:
“In addition, silence alone is not enough to satisfy counsel’s duty to assist the client. Instead, an alien defendant’s Sixth Amendment right to counsel is satisfied if defense counsel advises the client that a conviction may have immigration consequences, that immigration law is a specialized field, that the attorney is not an immigration lawyer, and that the client should consult an immigration specialist if the client wants advice on that subject.” (Padilla v Kentucky, 559 US at —,130 S Ct at 1494 .)
Padilla, however, was not a “fragmented Court” (see For the People Theatres of N.Y., Inc. v City of New York,
. Although the court is constrained to find defense counsel’s performance deficient in light of Padilla, I must note that counsel has appeared before the court on numerous occasions and the court has always found him to be professional and highly competent. The irony of the application of Padilla to the instant case is that counsel’s advice to Garcia to seek out specialized immigration advice was more than what was then required in New York under People v McDonald (
. The Padilla Court remanded that case on the issue of prejudice, which it did not address because it was not passed on below.
. The court notes that immigration courts have been known to face situations where dishonest, unlicensed or otherwise incompetent individuals hold themselves out to be immigration specialists at the expense of vulnerable unsuspecting clients. (See Walder, Fake Immigration Attorney Gets 6-Month Jail Sentence, NYLJ, July 12, 2010, at 1, col 1; Iavorski v United States Immigration & Naturalization Serv.,
. In Flores v State (— So 3d —,
. Until and unless there is controlling appellate authority to the contrary, I hold that a court’s warning regarding deportability, standing alone, while a significant factor, should not be given conclusive and dispositive effect on the issue of prejudice. (See People v Kuar,
. Even if the court’s warning should be given preclusive effect on the claim of prejudice (see generally CPL 220.50 [7]), I would still hold Garcia was not afforded “meaningful representation” when the deportation issue was of such paramount importance to him.