A judge's warning that a defendant could be subject to deportation if he pleaded guilty to a misdemeanor did not alleviate the ineffectiveness of his counsel under a new standard expressed by the U.S. Supreme Court, the judge ruled in vacating his prior acceptance of the plea.
Brooklyn Acting Supreme Court Justice Joseph K. McKay observed that the U.S. Supreme Court's recent decision in Padilla v. Kentucky, 130 S. Ct. 1473, had altered the legal landscape since he had accepted Jose Garcia's plea 2 1/2 years ago.
"[W]here, 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," McKay wrote in People v. Garcia, 4050-06.
A permanent resident of the United States since 2005 and a native of the Dominican Republic, Garcia was arrested on May 24, 2006, after a detective allegedly spotted him handing over a Ziploc bag containing cocaine to two men.
At a Feb. 27, 2008, plea allocution, Andrew Stoll, Garcia's attorney, stated that he had discussed the possible immigration consequences of a guilty plea "extensively" with both his client and the attorney Garcia had hired to advise him on immigration issues.
McKay responded that "a controlled substance conviction certainly can 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…and, as far as I'm concerned, he can assume that he's deportable."
Despite the judge's warning, Garcia pleaded guilty to one count of criminal possession of a controlled substance in the seventh degree, a class A misdemeanor, in exchange for a promised sentence of a conditional discharge and forfeiture of some $4,000.
Two years later, Garcia was arrested by the U.S. Department of Homeland Security after returning from a trip abroad and charged with violating the Immigration and Nationality Act.
Garcia, who is now in Pennsylvania pending deportation proceedings, subsequently moved to vacate his conviction under CPL 440 on the ground that he had not received effective assistance of counsel.
He claimed he had asked Stoll, his attorney, about the immigration consequences before entering a guilty plea, but Stoll "admitted that he was ignorant concerning immigration law [and] refused to research the issue." Stoll told him to "seek advice from an immigration specialist," the defendant wrote in court papers.
"With nowhere else to turn," Garcia claimed he had retained an immigration paralegal who erroneously told him that pleading guilty to a single misdemeanor conviction would not affect his immigration status.
He insisted he would have opted to go to trial had he been aware that he could be deported due to his guilty plea. And he argued that his conviction and sentence should be overturned in light of the U.S. Supreme Court's March 31, 2010, ruling in Padilla.
In Padilla, the Court held that an attorney's failure to inform a client of the collateral deportation consequences of a guilty plea amounted to ineffective assistance of counsel. McKay said the decision changed the New York rule.
Prosecutors countered that Garcia's reliance on Padilla was "misplaced, because the rule announced in that case does not apply retroactively to defendant's motion to vacate the judgment.
"As of the date of defendant's plea … an attorney's failure to advise a defendant of possible immigration consequences did not constitute ineffective assistance of counsel," they argued.
The judge acknowledged that different courts had reached different results on the retroactivity of Padilla (NYLJ, July 27).
In ruling that the decision applied in Garcia's case, McKay looked to the Court of Appeals' 1995 ruling in People v. Eastman, 85 NY2d 265.
In Eastman, the Court observed that "[w]hen a Supreme Court decision applies a well-established constitutional principle to a new circumstance, it is considered to be an application of an 'old' rule, and it is always retroactive."
McKay wrote, "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."
The judge then turned to whether Garcia received ineffective assistance of counsel under state law and Strickland v. Washington, 466 U.S. 668 (1984), which requires a defendant to show that an attorney's "deficient performance prejudiced the defense."
Here, the judge said the immigration consequences of a guilty plea were "readily ascertainable."
"Merely advising a client to seek outside immigration advice, without more, now fails to meet the affirmative duty set forth in Padilla, at least where the immigration implications of the plea were fairly straightforward…and where the specialist's advice was wrong," the judge wrote.
A "more difficult" issue, he said, was determining whether Garcia suffered actual prejudice from his counsel's ineffectiveness in light of the fact that the court issued warnings, and he chose to ignore them.
McKay noted that Southern District Judge Loretta A. Preska had ruled in United States v. Bhindar, 2010 WL 2633858, that a federal magistrate's warnings had been sufficient to put the defendant on notice that he faced deportation if he pleaded guilty.
"With this clear instruction, Bhindar would be hard-pressed to show that the ineffective assistance of counsel prejudiced his defense," Preska wrote.
But the state judge concluded that "the strict requirements of Padilla" required him to reach a different result in Garcia's case -- that his warning at the plea proceeding did not "automatically cure counsel's failure nor erase the consequent prejudice."
Thus, he vacated the conviction, and restored the case to the trial calendar.
Jill Oziemblewski handled the case for the Brooklyn District Attorney's Office. An office spokesman said the decision is under review.
Andrew L. Friedman of the Law Office of Andrew L. Friedman represented Garcia on his motion to vacate. Friedman said Garcia is slated to be released within the next week and will be reunited with his family.
Stoll of Stoll, Glickman & Bellina said he was "pleased that Mr. Garcia will not be deported on the ba sis of a plea to a victimless" and minor crime.
