People v. Vatic

39 Misc.3d 1236

972 N.Y.S.2d 146

2013 N.Y. Slip Op. 50909

The PEOPLE of the State of New York, Plaintiff,

v.Vilson VATIC, Defendant.

No. 2008BX5805.

Supreme Court, Bronx County, New York.

May 31, 2013.

Katherine Skolnick, Center for Appellate Litigation for the defendant, Vilson Vatic.

Bari Kamlet, Assistant District Attorney, Office of the Bronx District Attorney.

STEVEN BARRETT, J.

On January 30, 2013, this Court ordered a hearing, pursuant to CPL § 440.30(5), in order to determine defendant's motion to vacate his conviction based on his Padilla-based ineffective assistance of counsel claim pertaining to plea counsel's alleged failure to warn defendant of the immigration consequences of his plea. Prior to the date that the hearing was scheduled to be held, the United States Supreme Court decided Chaidez v. United States, 133 S.Ct. 1103 (2013). In Chaidez, the Court held that the rule enunciated in Padilla v. Kentucky, 559 U.S. 356 (2010), extending an ineffective assistance of counsel claim to the failure of defense counsel to warn a defendant, prior to pleading guilty, of the immigration consequences of such plea, is a new rule of constitutional law that need not be applied to convictions which became final prior to Padilla. This Court is persuaded by Chaidez 's cogent analysis of retroactivity principles as applied to Padilla-based claims of ineffective assistance of counsel, and, thus, is not bound by Padilla in the instant case because defendant's conviction became final prior to the Padilla decision. Applying the New York and federal standards for ineffective assistance of counsel claims as they existed at the time defendant's conviction became final to defendant's claim, I conclude that a hearing is no longer necessary, and defendant's motion to vacate on this ground must be denied.

Defendant, in his supplemental affirmation and memorandum of law, makes numerous arguments for retroactive application of Padilla, none of which the Court finds persuasive. Defendant's initial argument that somehow, in the face of Chaidez, People v. Baret, 99 AD3d 408 (1st Dept.2012), is still controlling precedent is unavailing. In Baret, deciding that Padilla applies retroactively, the First Department concluded, under the Teague v. Lane (infra, 489 U.S. 288) test for retroactivity, that Padilla did not establish a new rule, but merely clarified the law regarding ineffective assistance of counsel claims as it applied to the particular factual scenario presented. Baret, 99 AD3d at 409. Thus, when the Court, in Chaidez, held to the contrary—that Padilla broke new ground and established a new rule that extended the Sixth Amendment to reach a lawyer's advice concerning the immigration consequences of pleading guilty—it clearly undermined the reasoning underlying Baret, effectively overruling it. See Chaidez, 133 S.Ct. at 1110;see also People v. Santos, 969 N.Y.S.2d 390, 2013 WL 1890124 (N.Y. Sup.Ct. Bx Co.2013)(Price, J.).

Defendant argues alternatively, that even if the Court follows Chaidez and finds that Padilla is a new rule, Padilla still should be applied retroactively based upon the so-called watershed exception found in Teague. See Teague v. Lane, 489 U.S. 288, 311–12 (1989).¹ This argument is without merit. In Teague, the Supreme Court left open the possibility of applying a new rule retroactively where the new rule alters a bedrock element of criminal procedure which implicates the fundamental fairness and accuracy of the trial. See People v. Eastman, 85 N.Y.2d 265, 275 (1995), citing Teague v. Lane, supra, 489 U.S. at 311–12.² Plainly, the failure to warn a defendant of the collateral immigration consequences of pleading guilty is neither a bedrock element of criminal procedure nor is it central to an accurate determination of a defendant's guilt or innocence. Indeed, we learned in Chaidez that the Padilla holding was carefully circumscribed. In finding that Padilla broke new ground, Justice Kagan also noted that the Court in Padilla did not “eschew the direct-collateral divide across the board” and did not impose a duty upon counsel to inform a client of all the collateral consequences of pleading guilty. See Chaidez, supra, 133 S.Ct. at 1112. Instead, due to the “special nature of deportation” the Court imposed a duty upon counsel to inform a client only of the immigration consequences of pleading guilty. Id. Thus, the Supreme Court's language in Chaidez strongly suggests to this Court, that although Padilla announced a new rule, it did not announce a rule that should be characterized as watershed.

This Court also declines defendant's invitation to apply a broader retroactivity standard to Padilla-based claims than have the federal courts. See Danforth v. Minnesota, 552 U.S. 264 (2008)(states may apply broader retroactivity standards to a federal constitutional rule than the federal courts). In People v. Marshall, 39 Misc.3d 1214(A)(N.Y. Sup.Ct., Bx Co.2013), my learned colleague, the Hon. Leonard Livote, recently noted that People v. Pepper, 53 N.Y 213 (1981), sets forth the criteria under New York law to assess whether to apply a new precedent retroactively. See also Policano v. Herbert, 7 NY3d 588, 603 (2006) ( Pepper analysis utilized by Court of Appeals in holding that new standard for when to charge depraved indifference murder not to be applied retroactively). This Court agrees with Justice Livote that when the Pepper factors are utilized to evaluate whether to apply Padilla retroactively, the result is the same as when the Teague test is used— Padilla is not retroactive. To repeat, in this Court's estimation, Padilla-based claims do not go to the heart of determining a defendant's guilt or innocence, but are much more akin to decisions that are “collateral to or relatively far removed from the fact-finding process at trial.” Pepper, 53 N.Y.2d at 221. In addition, this Court, too, is concerned with the effect of applying Padilla retroactively, especially when such claims are raised in the context of collateral review of convictions made pursuant to CPL 440.10. Affording retroactivity to such defendants has the undesired effect of opening the door to many such Padilla-based ineffective assistance of counsel claims, including the instant one, which are so remote in time that memories of plea counsel—and, if vacatur is granted, the memories of trial witnesses—will most certainly have faded. See Pepper, supra, 53 N.Y.2d at 222 (based, in part, upon its concern with the impact upon the administration of justice, Court applied its decision in People v. Samuels retroactively only to those cases still on direct review at the time the change in law occurred); see also, Policano v. Herbert, supra, 7 NY3d at 604 (Court expressed particular concern with flooding the criminal justice system with 440.10 motions if the new standards regarding depraved indifference murder charges applied retroactively).

Based on the foregoing reasons, the Padilla holding does not apply to the instant case, which became final prior to the Padilla decision. Under the standards prevailing when defendant's conviction became final, defendant could prevail on an ineffective assistance claim only if he established, prior to pleading guilty, that his attorney provided misadvice to him regarding the immigration consequences of his plea and that he was prejudiced by such advice. See People v. McDonald, 1 NY3d 109 (2003); People v. Ford, 86 N.Y.2d 397 (1995)(mere failure to advise a defendant of the possibility of deportation does not constitute ineffective assistance of counsel); People v. Baret, 99 AD3d 408, 409 (1st Dept.2012)(stating New York law prior to Padilla). Because defendant only alleges that his attorney failed to advise him of the immigration consequences attendant to his guilty plea, and does not allege that his attorney affirmatively provided erroneous information regarding the immigration consequences of his plea, on the basis of McDonald and Ford, defendant's motion must be denied.³

Defendant's second ground for vacatur, that the court's and counsel's failure to warn him of the immigration consequences of his plea rendered his plea unknowing and involuntary, is also without merit. Initially, to the extent that this argument is premised upon the Court's failure to warn defendant during his plea allocution of the immigration consequences of his plea, this claim is a matter of record which could have been raised on direct appeal, and, therefore, is procedurally barred. See 440.10(2)(c). In any event, under New York law as it existed at the time defendant's conviction became final, the Court was not required to inform defendant that his plea of guilty to a misdemeanor charge may result in his deportation. See People v. Ford, supra, 86 N.Y.2d at 403–4.⁴ Moreover, there is nothing in the record of defendant's plea allocution that indicates that his plea was fundamentally unfair or involuntary.

Defendant's final claim, first raised in his supplementary submission, that plea counsel was ineffective for having failed to seek an “immigration-safe” plea—one that does not subject him to deportation—is equally unavailing. This argument initially fails because it mistakenly presupposes that counsel has an affirmative obligation to negotiate any such plea bargain. Contrary to defendant's contention, the United States Supreme Court has not imposed such an obligation upon counsel. In Missouri v. Frye, 132 S.Ct. 1399 (2012), counsel's performance was found deficient because he did not advise defendant of the initial plea offer that had expired. In Lafler v. Cooper, 132 S.Ct. 1376 (2012), the record indicated that all parties had agreed that counsel's advice which had resulted in the rejection of the plea offer was deficient. Here, neither Frye nor Cooper is applicable since defendant does not posit that the People offered an “immigration-safe” plea that counsel, in turn, failed to advise him of, or that counsel offered him...