SUPREME COURT STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT

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1 To be argued by: Labe M. Richman Time requested: 10 minutes SUPREME COURT STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT People of the State of New York v. Roman Baret Bronx County Indictment No. 2735/95 APPELLANT'S BRIEF Respectfully Submitted, Office of Robert Johnson By ADA Jason Whitehead Bronx District Attorney Attorney for Appellee 198 E. 16 pt Street Bronx, NY Labe M. Richman Attorney for Appellant 305 Broadway, Suite 100 New York, NY (212) Reproduced on Recycled Paper

2 TABLE OF CONTENTS QUESTIONS PRESENTED... 1 STATEMENT OF THE CASE... 2 INTRODUCTION... 2 ARGUMENT POINT I THIS COURT SHOULD REVERSE THE ORDER BECAUSE THE LOWER COURT, INTER ALIA, MISTAKENL Y USED A DISCRETIONARY STANDARD AND, IMPORTANTLY, REFUSED TO APPLY PADILLA V KENTUCKY BECAUSE OF A MISTAKEN BELIEF ABOUT ITS RETROACTIVE APPLICATION AND PADILLA CLEARLY APPLIED BECAUSE DEFENDANT WAS NOT TOLD THE CLEAR AND SUCCINCT IMMIGRA TION CONSEQUENCES OF HIS CONVICTION - THAT HE WAS CONVICTED OF AN AGGRAVATED FELONY UNDER IMMIGRATION LAW AND THAT HE WOULD BE DEPORTABLE WITH NO REMEDY AND COULD NEVER TRA VEL AND RE-ENTER THE UNITED STATES AND WOULD BE FOREVER BARRED FROM CITIZENSHIP; AND, IT WAS OBVIOUS THAT DEFENDANT WOULD NEVER HAVE TAKEN THE PLEA HAD HE KNOWN THIS CRITICAL INFORMA TION BECAUSE HE CATEGORICALLY INDICATED THAT HE WANTED HIS PLEA BACK FOR OTHER REASONS SOON AFTER THE GUILTY PLEA WAS ENTERED AND HIS ENTIRE F AMIL Y WAS HERE AND THERE IS A REASONABLE PROBABILITY THAT HE WOULD HA VE GONE TO TRIAL OR, AT MINIMUM, TAKEN A PLEA WITH THE SAME SENTENCE OR GREATER SENTENCE ON THE LAST COUNT OF THE INDICTMENT WHICH WAS NOT AN AGGRAVATED

3 FELONY UNDER IMMIGRATION LAW POINT II PADILLA SHOULD BE GIVEN RETROACTIVE EFFECT CONCLUSION ADDENDUM: CPLR 5531 STATEMENT

4 SUPREME COURT: STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPT )( PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- ROMAN BARET, Defendant-Appellant-Movant )( PRELIMINARY STATEMENT Appellant, Roman Baret, appeals from an order the Supreme Court (RA YMOND L. BRUCE, J.) dated March 3,2011, denying appellant's motion to vacate his judgment pursuant to CPL O( 1 )(h). The lower court had previously sentenced defendant on the judgment to two to six years which was previously affirmed by this Court. Defendant has been ordered deported, but was recently released from immigration custody and is on supervised release with the Department of Immigration and Customs Enforcement. QUESTIONS PRESENTED 1. Whether this Court should reverse the order because the lower court, inter alia, mistakenly used a discretionary standard and, importantly, refused to apply Padilla v. Kentucky because of a mistaken belief about its retroactive application and Padilla clearly applied because defendant was not told the clear and succinct immigration consequences

5 of his conviction - that he was convicted of an aggravated felony under immigration law and that he would be deportable with no remedy and could never travel and re-enter the United States and would be forever barred from citizenship; and, it was obvious that defendant would never have taken the plea had he known this critical information because he categorically indicated that he wanted his plea back for other reasons soon after the guilty plea was entered and his entire family was here and there is a reasonable probability that he would have gone to trial or, at minimum, taken a plea with the same sentence or greater sentence on the last count of the indictment which was not an aggravated felony under immigration law? 2. Whether Padilla should be given retroactive effect? STATEMENT OF FACTS 1. Introduction In short, prior to sentencing on his original plea, defendant moved to take back his plea because he felt he had been coerced into the plea to benefit his co-defendant who would not have gotten a probation plea offer unless defendant also pleaded guilty. Although defendant's motion was denied, the process categorically showed his interest in going to trial a few months after his plea of guilty. The rightness of the plea court's decision on the original plea withdrawal motion was hotly disputed and, although 2

6 eventually upheld on appeal, the decision involved vigorous dissents in this Court and the Court of Appeals. Having thus expressed his sincere desire to try this case in 1997, defendant recently returned to Court to effectuate his rights under Padilla v. Kentucky - that he was not given the dire and inflexible immigration consequences of this conviction: that the conviction was an aggravated felony under immigration law which would make him deportable with no remedy, would forever bar him from citizenship and would make him inadmissible to the United States. At the time of this plea, his entire family was here, including parents, brothers and sisters, a wife and a child. He would never want to leave that beautiful family without a fight. Moreover, not only did he express a desire to go to trial a few months after his plea of guilty and prior to his sentencing, but he could have also sought a plea of guilty to the last count of the indictment, and obtained the same two to six year sentence on a controlled substance felony which would have not been an aggravated felony under immigration law. Since he did not have the correct immigration advice under Padilla, he could not seek or obtain that option. There is a "reasonable probability" (as required by Strickland/Padilla) that this particular plea of guilty would not have occurred had he been given the full immigration stakes prior to his plea. The lower court erred when, ignoring the vast majority of cases on the subject, the lower court refused to properly address our claim on the grounds that Padilla v. Kentucky 3

7 is not to be given retroactive effect. It also mistakenly used a discretionary standard. * * * The Bronx County Grand Jury indicted defendant for sales of a narcotic drug occurring on November l3, 1994, December 18,1994, January 12,1995, February 14, 1995, March 29,1995, April 4, 1995, and possession ofa narcotic drug on April 7, This led to six counts of third degree criminal sale of a controlled substance, eight counts of third degree criminal possession of a controlled substance (intent to sell) and one count of fourth degree criminal possession of a controlled substance (one-eighth ounce of powder containing cocaine). See, Indictment attached as Exhibit A to Defendant's Original 440 Motion ("D. Mot.") (A ). I It was unclear as to why the defendant was not arrested after any of these sales of drugs. On December 23, 1996, defendant pleaded guilty. (See, D. Mot. Exh. B; A ). The defendant was not sworn for his colloquy. His attorney, David Goldstein, entered a plea of guilty to the eleventh count of the indictment with the understanding that he would receive two to six years in jail and the co-defendant, who was only charged with one sale, would receive probation (A ). Count Eleven charged third degree criminal sale of a controlled substance. The Court then indicated that despite the two to six year sentence, it would recommend the shock incarceration program (which only this Brief. 1 Numbers in parentheses after "A." refer to pages of Appellant's Appendix filed with 4

8 involves a short waiting period injail and then six months of incarceration). The Court then took the plea from the co-defendant (A ). When that concluded, the Court told defendant that he was pleading guilty to third degree criminal sale of a controlled substance (A. 56). The Court then asked ifhe understood English and the defendant answered "a little bit." The Court then instructed the defendant that ifhe did not understand something he should ask the interpreter to explain it. Id. First, the Court inaccurately stated that he was charged with acting in concert with his co-defendant to sell drugs in the count to which he was pleading. Count Eleven did not charge the co-defendant (id). The Court also got the time wrong and counsel corrected him (A ). Several lines down from the Court's discussion of the charge, the defendant answered "Yes" (A. 57). The defendant answered in the affirmative as to whether he knew it was illegal to sell drugs. Id. The Court advised the defendant of the rights he was giving up: to suppress evidence, to a trial, and to counsel (A 58-59). The defendant was asked if anyone forced him to plead guilty or bribed him and he answered in the negative (A. 60). He answered in the affirmative that he was pleading of his own free will (A. 60). The co-defendant, as noted above, was present in the well for this colloquy. The defendant was then warned that he was out on bail and ifhe did not appear or if he committed new crimes or did not cooperate with the Probation Department, he could be sentenced to up to eight and a third to twenty-five years (A. 61). 5

9 The defendant was not told by counselor by the Court that he was pleading guilty to an aggravated felony under immigration law which would lead to deportation with no remedy, and most importantly, that he was forever barred from obtaining citizenship or from traveling and re-entering the United States. Moreover, prior to the plea, counsel should have known that the immigration law was recently made much more harsh in two statutes, AEDP A and lralra which were passed in April and August of 1996, respectively. Prior to a sentencing, on May 1, 1997, the defendant, with new counsel, Edward Kratt, moved to take back his plea on the grounds that he had been threatened to take his plea to benefit the co-defendant who received probation. He alleged that his will had been overborne. See, Motion Papers of All Parties, (D. Mot. Exh. C; A ). This motion was denied in a decision also included in the same 440 Exhibit. (D. Mot. Exh C; A ). The defendant did not appear for sentencing. Defendant was never indicted for bail jumping. Eventually in 2004, he was returned for sentencing. He submitted documentation showing his full-time work since his plea of guilty (S. 4, A. 84). 2 He had never been re-arrested (S. 6; A. 86). The People stated that they had no objection to him being sentenced to the two to six years originally promised with the understanding that he 2 Numbers in parentheses after "S." refer to pages of the sentencing transcript attached as a 440 Exhibit (D. Mot. Exh D, A ). 6

10 would not be charged with bail jumping. (S. 3, 7; A. 83, 87). Ostensibly because of defendant's good behavior since his alleged misdeeds, the Court had no objection to the defendant entering the Shock Incarceration Program (S. 4; A. 84). The Court's denial of defendant's motion to withdraw his plea was appealed and the Appellate Division affirmed in a divided opinion. People v. Roman Baret, 43 A.D.3d 648 (I st Dept. 2007) The dissenting justice granted leave to the Court of Appeals and they ultimately affirmed (also with a dissent). People v. Roman Baret, 11 N.Y.3d 31 (2008). The defendant served his time during this appeal. The defendant, in his 440 Padilla motion, filed an affidavit where he set forth that had he known the dire immigration consequences of this plea he certainly would not have voluntarily taken it (A ). He had been in the United States for many years and, in December of 1996 (the time of the plea), he had his whole family here, which included parents, a child, his wife, and brothers and sisters. He did not really want the plea anyway because he moved to take it back prior to sentencing. Therefore, by adding the true and horrible immigration consequences to the mix, he would have never voluntarily taken a plea to an aggravated felony under immigration law which would make him deportable with no remedy and would give him a lifetime bar to U.S. citizenship. At minimum, he would have at least demanded that any plea only be to the last count which would not have been an aggravated felony under immigration law. He could have obtained that plea 7

11 by agreeing to do more time in jail, cooperating or some other accommodation to the People. But in no event would he give up his life in the United States without extraordinary effort (A ). This 440 counsel noted that he had spoken with plea counsel, David Goldstein, who told him that he does not remember whether he advised the defendant of the immigration consequences. He agreed to provide an affidavit and 440 counsel provided him with one by . However, he failed to sign it and provide it to the defense. Counsel saw him in court on a subsequent date and he told him that he was going to write his own affidavit but the defense never received it (A. 11). Therefore, defendant explained why he did not have an affidavit from plea counsel. This is not surprising because any attorney whose conduct is being reviewed will be reluctant to put anything in writing. Defendant noted that if the 440 Court had any doubt about plea counsel's position on the advice, it should order a hearing to compel his testimony on the issue. Prior to his incarceration, the defendant was living with his parents who were and are very ill. His father had open heart surgery and his mother is on oxygen. (D. Mot. Exh. E; A. 90). The 440 court denied the motion in an erroneous decision (A ). The Court first erred when it said that the decision on whether to grant the motion "rests in the sound 8

12 discretion of the trial court" (D. 3; A. 322). 3 This was patently wrong because if the defendant's constitutional rights were violated, under the 440 statute, at minimum, defendant was entitled to an evidentiary hearing. Showing how confused the Court was, it cited CPL (3) for this proposition, which was not the relevant statute on the motion. The Court then wrongly stated that a lawyer would be effective if the plea was advantageous and the record did not cast doubt on counsel's performance (0.3, A. 322). This, again, was incorrect because 440 motions almost always involve allegations which are off the record which cast doubt on counsel's performance. Further, almost all pleas of guilty offer some advantage to the defendant. That could not be the real standard when a defendant loses his entire life in the United States and any chance at citizenship. Finally, and most importantly, the 440 Court, in contravention of the majority of the cases on the subject, and without one shred of legal analysis, found that Padilla v. Kentucky was not to be given retroactive effect (A. 323). The Court only cited one case on the subject and that case was a pro se 440 where the Court had no argument from defense counsel as to why Padilla must be retroactive. rd. We applied to this Court for leave to appeal which was granted and a notice of appeal was then filed (A ). 26). 3 Numbers in parentheses after "D." refer to pages ofthe 440 court's decision (A

13 ARGUMENT POINT I THIS COURT SHOULD REVERSE THE ORDER BECAUSE THE LOWER COURT, INTER ALIA, MISTAKENLY USED A DISCRETIONARY STANDARD AND, IMPORTANTLY, REFUSED TO APPLY PADILLA V. KENTUCKY BECAUSE OF A MISTAKEN BELIEF ABOUT ITS RETROACTIVE APPLICATION AND PADILLA CLEARLY APPLIED BECAUSE DEFENDANT WAS NOT TOLD THE CLEAR AND SUCCINCT IMMIGRATION CONSEQUENCES OF HIS CONVICTION - THAT HE WAS CONVICTED OF AN AGGRAVATED FELONY UNDER IMMIGRATION LAW AND THAT HE WOULD BE DEPORTABLE WITH NO REMEDY AND COULD NEVER TRAVEL AND RE-ENTER THE UNITED STATES AND WOULD BE FOREVER BARRED FROM CITIZENSHIP; AND, IT WAS OBVIOUS THAT DEFENDANT WOULD NEVER HAVE TAKEN THE PLEA HAD HE KNOWN THIS CRITICAL INFORMATION BECAUSE HE CATEGORICALLY INDICATED THAT HE WANTED HIS PLEA BACK FOR OTHER REASONS SOON AFTER THE GUILTY PLEA WAS ENTERED AND HIS ENTIRE F AMIL Y WAS HERE AND THERE IS A REASONABLE PROBABILITY THAT HE WOULD HAVE GONE TO TRIAL OR, AT MINIMUM, TAKEN A PLEA WITH THE SAME SENTENCE OR GREATER SENTENCE ON THE LAST COUNT OF THE INDICTMENT WHICH WAS NOT AN AGGRAVATED FELONY UNDER IMMIGRATION LAW. There can be no doubt that defendant wanted to go to trial because soon after his first plea of guilty he moved to take it back for other reasons. His lawyer does not remember whether he gave him immigration warnings and, even though he clearly had the duty to advise the defendant of these consequences, it is unlikely that counsel told him about the effect of the statute which had passed Congress several months earlier. Defendant turned his life around and, afterward, did his time in jail. Therefore, not 10

14 only was there a reason to vacate the plea under the state and federal constitutions, but there is no need for this conviction to exist anymore - defendant has been punished and rehabilitated. The Court's opinion denying the motion, cited the wrong statute, applied the wrong standard, and found, without any analysis and without acknowledging numerous cases to the contrary, that Padilla v. Kentllcky is not to be given retroactive effect. These various findings by the lower court should be reversed by this Court. 4 * * * It has finally come to pass that defendants are entitled to clear advice about the immigration consequences of their convictions. The Supreme Court, in Padilla v. Kentucky, 559 U.S. _,130 S.Ct (2010), ruled that the passage oflaws in 1990 and, more importantly, AEDP A and lralra in 1996, with its expansion of deportable offenses and abolition of waivers for certain crimes, made knowledge of immigration consequences critical for criminal counsel. As the Court stated: These changes confirm our view that, as a matter of federal law, deportation is an integral part-indeed, sometimes the most important part - of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes. 130 S.Ct. at Therefore, as the Court ruled, immigration consequences are no 4 The retroactivity issue is argued in Point II, infra. 5 The Supreme Court noted that this was a result presaged by the Second Circuit in Janvier v. United States, 793 F.2d 449 (2d Cir. 1986). The Supreme Court noted that 11

15 longer collateral. This makes perfect sense because in many cases, such as this one, the immigration consequences are worse than or equal to the penal ones. See INS v. St. Cyr, 533 U.S. at 321 ("'[p]reserving the clients' right to remain in the United States may be more important to the client than any potential jail sentence. "')( citations omitted); Ng Fung Ho v. White, 259 U.S. 276, 284 (1 922)(deportation can result in a loss "of all that makes life worth living"). 6 Therefore, the Court ruled that counsel must consider the correct immigration consequences in his representation. The Supreme Court opinion set forth the duty as follows: 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. "Under the Second Circuit's reasoning, the impact of a conviction on a noncitizen's ability to remain in the country was a central issue to be resolved during the sentencing process-not merely a collateral matter outside the scope of counsel's duty to provide effective representation." Padilla v. Kentucky, supra, 130 S.Ct. at 1480 (emphasis added) 6 It is for this reason that the Legislature recently passed CPL (4), letting a defendant avoid pleading guilty to get into a drug diversion program when that plea would lead to collateral consequences. This is significant acknowledgment by the Legislature, even prior to Padilla, that collateral consequences are just as important as penal ones. 12

16 Padilla v. Kentucky, supra, 130 S.Ct. at The immigration consequences in this case were exceedingly clear. The aggravated felony statute makes clear that any "offense" involving narcotics trafficking is an aggravated felony. 8 U.S.c. 1101(a)(43)(B). This means any offense which involves intent to sell or sale of controlled substances is trafficking. See, In re L-G-, BIA, 1995 cited in 171 F.3d 142. See, e.g. 21 U.S.C [It should be noted that the last count of the indictment, possession of an eighth of an ounce is not an aggravated felony because there is no element of sale or intent to sell. Aguirre v. INS, 79 F.3d 315 (2d Cif. 1994)(Second Circuit acknowledges that Board of Immigration Appeals has ruled that state narcotics felonies which do not fit within federal felonies are not aggravated felonies under immigration law and, in spite of Second Circuit ruling to the contrary, will respect BIA decision in immigration cases)]. Therefore, defendant should have been told that his plea offense under the 11 th Count was an aggravated felony under immigration law. Aggravated felonies make a person deportable with no remedy. See, 8 USC 1227(a)(2)(A)(iii)(stating alien "shall" be deported for conviction of aggravated felony), 1229b(a)(3)(aliens convicted of aggravated felonies ineligible for remedy of cancellation of removal). Of equal importance is the fact that a conviction for an aggravated felony is also a lifetime bar to citizenship. 8 USC 1101(f)(8); INA 101(f)(8); INA 101 (a)( 48)(b). This is a critical concern. When a defendant is absolutely deportable with no remedy, a general warning that 13

17 a conviction might cause immigration consequences is not sufficient when the consequences are much more clear and dire. People v. Garcia, 2010 N.Y. Misc. LEXIS This is because, as noted above, if the consequences are clear, the advice must also be clear. Padilla v. Kentucky, supra, l30 S.Ct. at A reading of Padilla shows that its holding is based on the seminal ineffectiveness case of Strickland v. Washington. Both Padilla and Strickland make clear that ineffective assistance of counsel claims have two prongs. Accordingly, a defendant is deprived of his right to counsel when the attorney (a) fails to provide "reasonably effective assistance," that does not fall below an "objective standard of reasonableness." Strickland, 466 U.S. 668 at ; and (b) "there is a reasonable probability that but for counsel's unprofessional errors, the result would have been different," id. at 694( emphasis added). As to the first prong, it is clear that at the time of the taking of this plea it was subpar professional conduct not to competently advise a client as to the clear immigration consequences of the conviction. Two of the sources cited by the Court to support the duty to know and discuss immigration consequences were dated prior to this plea of guilty. National Legal Aid and Defender Assn., Performance Guidelines for Criminal Representation f6.2 (1995); ABA Standards for Criminal Justice, Prosecution Function and Defense Function (a), p. 197 (3d ed. 1993). More importantly, AEDPA, and lralra which are the last federal laws to drastically change deportation and 14

18 admissibility consequences of convictions was passed in April and August of 1996, respectively, which was prior to this plea of guilty on December 23, These were the two statutes whose passage the Padilla court used to find the duty expressed in Padilla - that counsel should know the clear immigration consequences of the conviction. 130 S.Ct. at 1480 ("These changes [passage of the above statutes] confirm our view that, as a matter of federal law, deportation is an integral part-indeed, sometimes the most important part - of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes." ). Therefore, at the time of this plea in December of 1996, it was incumbent upon counsel and the defendant to know about the clear consequences of this conviction and the availability or non-availability of discretionary relief or citizenship. Defendant, according to the law, deserved to know the true stakes involved in his case. Of course, there is also a second prong. Even when an attorney violates his responsibility to advise the defendant of the clear immigration consequences, a defendant will not obtain vacatur of his plea unless he can show that had he been given the correct advice, there is a reasonable probability the result would have been different. Padilla v. Kentucky, 130 S.Ct. at It bears emphasizing that the words "reasonable probability" do not require categorical proof that defendant would definitely have litigated the case had he been given the correct advice under Padilla. In deciding whether the defendant would have taken the plea but for the bad 15

19 advice on non-advice, the Couto and McDonald courts criticized lower courts that emphasized the prosecution testimony it expected to be presented at a future trial. People v. McDonald, 1 N.Y.3d at 115 ("Contrary to the People's contention and the Appellate Division's holding below, the prejudice inquiry does not necessitate a prediction analysis as to the outcome of the proceeding"). United States v. Couto, 311 F.3d at 186, 191 ("The defendant's overriding concern is remaining in the United States and hence that she very likely would not have pleaded guilty" but for the misrepresentation of the immigration consequences); accord, United States v. Vaval, 404 F.3d 144, 151 (2d Cir. 2005). Therefore, it is not whether the defendant would lose a trial but whether there is a reasonable probability that he would not have taken the plea of guilty that he did or whether the conviction result would have been different. It should also be noted that if the state constitution were applied, the prejudice prong is a relevant but not indispensable element of the claim. People v. Stults, 2 N.Y.3d 277, ("We continue to regard a defendant's showing of prejudice as a significant but not indispensable element in assessing meaningful representation"). * * * The first prong of Padilla has been satisfied. As noted above, his attorney does not remember what discussions were had about immigration consequences and defendant has sworn that he was never told the immigration consequences of the conviction. And, of course, nowhere in the record is defendant ever warned of the risk of deportation or the 16

20 loss of his chance at citizenship. Defendant should have been told the dire consequences of this plea - that he was pleading guilty to an aggravated felony under immigration law that made him deportable with no remedy and that he would be barred for the rest of his life from becoming a citizen. If the People contest that he was not told this information, at minimum, an evidentiary hearing should have been required on the subject. [It makes sense that Goldstein would not make the advisement because AEDPA and IRAIRA, the statutes which really put the focus on immigration law, were passed several months before the plea of guilty. Although these statutes created a duty upon counsel to know the consequences, it is unfortunate but unlikely that many attorneys bothered to find out this information]. The second, prejudice prong has also been satisfied. This defendant, prior to sentencing, unequivocally indicated his willingness to go to trial by filing a motion to take back his plea. Indeed, the validity of this motion was hotly contested and the lower court's decision to deny the involuntariness motion was affirmed by divided courts in the Appellate Division and the Court of Appeals, where vigorous dissents were filed. People v. Roman Baret, 11 N.Y.3d 31 (2008),43 A.D.3d 648 (1 st Dept. 2007). In any event, at that time, the Padilla decision had not yet been issued and defendant did not raise the point. But it is clear that defendant had indicated his interest in a trial prior to sentencing in 1997, many years ago. It is not as ifhe waited for decades to request a trial. This is of critical importance because, defendant has categorically shown that he 17

21 was willing to take the risk of trial. Of course, since he affinned his interest in a trial back in 1997, it is obvious that had he known about the immigration consequences, he would certainly have not taken this plea and would have gone to trial. As my discussion of Couto and McDonald makes clear on page 16, supra, it is not whether a defendant would win a trial but whether, knowing the immigration consequences, there is a reasonable probability that he would not have taken this particular plea. People v. McDonald, 1 N.Y.3d at 115; United States v. Couto, 311 F.3d at 186, 191; accord, United States v. Vaval, 404 F.3d 144,151 (2d Cir. 2005). However, in any event, even if the Court could consider the proposed evidence at the trial, there was a defense in this case. Although the police alleged that defendant made numerous sales, he was never arrested after each of these sales until, his co-defendant, Nunez made a sale. It may have been possible that his presence at the final sale location may have led the police to mistakenly believe that he was the person who had made the other sales. Moreover, in this case, defendant, had he known the immigration consequences, would have demanded that, if he was not going to trial, any plea be under the last count, involving possession of an eighth of an ounce. This would not have been an aggravated felony under immigration law. See, discussion, supra, p. 13; Aguirre v. INS, 79 F.3d 315 (2d Cir. 1994). Defendant could have received the same 2 to 6 year sentence (or more if required) under this count and then would have had options to avoid deportation in the future by obtaining citizenship. This was very important to defendant. We have shown 18

22 that his entire family was here. And, as the Supreme Court has recognized, losing one's chance at a life in the United States is just as bad as significant jail time, since banishment away from one's family and opportunity is a loss of the most important things that life offers. See INS v. St. Cyr, 533 U.S. at 321 Ng Fung Ho v. White, 259 U.S. 276, 284 (1922). Therefore, because he would have gone to trial or taken another disposition, 7 there is a reasonable probability that he would have rejected the instant plea of guilty, the result would have been different, and the second prong of Strickland, therefore, was satisfied by our motion below. Strickland, 466 U.S. at 694. This reasonable probability is proven categorically by his request for a trial in 1997, right after the plea of guilty where he alleged he was threatened by the co-defendant who could not get probation without defendant pleading guilty. Add immigration consequences to the mix, and defendant 7 The Supreme Court in Padilla foresaw such a result: Counsel who possess the most rudimentary understanding of the deportation consequences of a particular criminal offense may be able to plea bargain creatively with the prosecutor in order to craft a conviction and sentence that reduce the likelihood of deportation, as by avoiding a conviction for an offense that automatically triggers the removal consequence. At the same time, the threat of deportation may provide the defendant with a powerful incentive to plead guilty to an offense that does not mandate that penalty in exchange for a dismissal of a charge that does. Padilla, p. 16. Had defendant known the advantages of pleading guilty to the last count, he may have wanted to avoid the risks of trial because of the immigration consequences rather than the penal consequences. Thus, a an attorney who vindicates the defendant's Padilla rights can cause defendants to take pleas when they might otherwise decide to go to trial. Here, knowledgeable counsel could have done this by negotiating a plea to the same (or an even longer sentence) with a conviction on the one non-aggravated felony count. 19

23 would not have voluntarily given up his right to trial. Although the violation of defendant's Padilla rights under the state and federal constitutions were substantial, the Court refused to recognize the legal infirmity primarily because it refused to apply Padilla retroactively. As we show in Point II, infra, this issue was wrongly decided. The Court, also applied the standard under CPL a statute which is not implicated in a CPL motion, such as this one. It was not a discretionary decision, as the Court mistakenly ruled, but one of statutory and constitutional dimension - that is, the Court needed to decide whether his constitutional rights were violated. There was no discretion involved. The Court was obligated to apply the facts to the law and it did not. POINT II PADILLA SHOULD BE GIVEN RETROACTIVE EFFECT. Many courts have found that Padilla v. Kentucky should be applied retroactively. People v. Nunez, 2010 Slip Op (App Term, 2 nd Dept., December 15,2010);8 see, Cantu v. United States, 130 S.Ct (2010)(Supreme Court grants writ, vacates 8 Some cases finding retroactivity are as follows: United States v. Orocio, 645 F.3d 630, 2011 WL (3d Cir. 2011); People v. Nunez, 2010 Slip Op (App Term, 2 nd Dept., December 15, 2010) People v. Paredes, 2010 Misc. Lexis 4639 (NY County); People v. Ortega, 2010 Misc. Lexis 4682; People v. Brown, 2010 Misc. Lexis 5029; People v. Ramirez, 29 Misc.3d 1201(A) (NY Crim, 2010); People v. Garcia, 2010 WL (Sup. Ct. Kings, 2010); People v. Bennett, 28 Misc.3d 575 (Bronx County, 2010). The cases finding that it is not retroactive are as follows: People v. Kabre 2010 WL (Crim. Ct. NY Cty, 2010); People v. Ebrahim, 2010 WL ; United States v. Chaidez, slip op, (August 23, 2011, 7th Cir. )(divided panel). 20

24 decision, and remands in light of Padilla to the Fifth Circuit, impliedly finding that Padilla had retroactive effect); People v. Paredes, 2010 N.Y. Misc. LEXIS 4639 *9 (Sept. 21, 201O)(finding that the U.S. Supreme Court's remand ofa case involving a guilty plea entered into prior to the decision in Padilla is clear indication that the Supreme Court is of the opinion that Padilla is retroactive); United States v. Orocio, 645 F.3d 630,2011 WL (3d Cir. 2011). Although a minority of courts have ruled the other way, we believe that logic, the majority of past case law, the language of Padilla itself and the realities of how Padilla motions work, support a retroactive application of Padilla. 1. The Courts in Oracio. Nunez. Bennett and Garcia were Right: Padilla Is Not a New Rule. Contrary to many cases in New York, Judge Clott in People v. Kabre, 2010 WL (Crim. Ct. NY Cty, 2010), has ruled that Padilla is a new rule, and that if it was not in place at the time this defendant's conviction became final, it should not be given retroactive application to that case. In response to this erroneous argument, we first adopt the holdings of this Court and others in People v. Nunez, 2010 Slip Op (App Term, 2 nd Dept., December 15,2010), People v. Bennett, 2010 WL (Crim. Ct. Bronx, 2010), and People v. Garcia, 2010 N.Y. Misc. LEXIS 4076, that Padilla is not a new rule because it is only an application of Strickland v. Washington, supra, a decision from In short, Padilla found that under Strickland's first prong, the failure of counsel to tell the defendant about the succinct and clear immigration consequences of the plea of 21

25 guilty fell below an objective standard of reasonableness under Strickland. As the Bennett court found, this analysis was supported by Williams v. Taylor, 529 U.S 362 (2000); contra, People v. Kabre, 2010 WL (Crim. Ct. NY Cty, 2010). 9 It should have been obvious to everyone that this area of the law was in flux. As early as 1974, the Second Circuit, in United States v. Michel, said that "Where his client is an alien, counsel and not the court has the obligation of advising him of his particular position as a consequence of the plea." 507 F.2d 461,465. And in United States v. Janvier, 793 F.2d 449, a case from 1986, the Second Circuit held that immigration issues were not a collateral part of the sentence. And, in fact, for the past 15 years, many federal prosecutors in New York City have been placing deportation as a consequence of the pleas of guilty in their standard plea agreements. According to both Bennett and Garcia, the most important argument in favor of retroactivity was the language of the Supreme Court in Padilla itself. The Padilla Court went to great pains to advise that its decision will not "open the floodgates" to a significant number of new post-conviction petitions. 130 S.Ct. 1473, This extensive discussion would not make sense if Padilla only applied prospectively. In addition, it appears the Court is treating Padilla as another application of Strickland when it discusses "the 25 years since we first applied Strickland to claims of ineffective As we argue throughout this point, Judge Clott was wrong in Kabre on several fronts. Also, Kabre was a pro se case, where Judge Clott did not have the benefit of a defense lawyer's input. 22

26 assistance at the plea stage." Id. Moreover, the Court's statement that "[i]t seems unlikely that our decision today will have a significant effect on those convictions already obtained as the result of plea bargains" also contemplates a retroactive application of the Court's decision. Id. Finally, the Court's discussion of the relationship between Hill v. Lockhart and Strickland reinforces the position that the Court is not articulating a new rule in Padilla. 130 S.Ct. at 1485 n The Court in Kabre, the decision which refused to follow the import of this language, could not refute the import of these statements in Padilla. Judge Clott could only assert that it was impossible for the Supreme Court to abrogate Teague without saying so WL at *9. This logic was entirely circular because Judge Clott was trying to negate the obvious import of the language of Padilla by assuming that his Teague analysis was right when that was the exact point he was trying to prove. Had he not assumed that his Teague analysis was correct, he would have had no argument at all to counter the import of the language of Padilla which indicated that the decision was retroactive. This Court should not attach any significance to the fact that the Padilla Court did not explicitly say that the opinion was retroactive. This is because Mr. Padilla's case or controversy did not include the issue of retroactivity and, therefore, any statement on the 10 Justice Alito also found in his concurrence that the majority's opinion put a lot of plea convictions at risk. This clearly meant that he thought the holding was retroactive. 23

27 subject would be an advisory opinion and might be considered dicta. I I It should be remembered that an explicit holding of retroactivity by the Supreme Court has specific meaning in federal habeas review of a state conviction. For example, in determining whether a petitioner can file a second or successive habeas petition under 28 U.S.C. 2254(b )(2)(A), the Court required that for a decision to apply retroactively, it must be an express holding of retroactivity that cannot be dictum, which must happen in another person's case on collateral review. Tyler v. Cain, 533 u.s. 656, 663 (2001). Under the Court's governing test, it could not have held that the Padilla decision was retroactive. According to the Court: The Supreme Court does not "ma[k]e" a rule retroactive when it merely establishes principles of retroactivity and leaves the application of those principles to lower courts. In such an event, any legal conclusion that is derived from the principles is developed by the lower court (or perhaps by a combination of courts), not by the Supreme Court. Id. Thus, the Court distinguishes between making an explicit holding of retroactivity that would permit a future petitioner to file a second or successive habeas petition challenging an underlying state conviction on the one hand, and articulating principles of retroactivity 11 Of course, in Cantu cited earlier, the Supreme Court reversed and remanded the case and, because the decision came after Padilla, retroactivity was an issue. Cantu v. United States, 130 S.Ct (201O)(Supreme Court grants writ, vacates decision, and remands in light of Padilla to the Fifth Circuit, impliedly finding that Padilla had retroactive effect); People v. Paredes, 2010 N.Y. Misc. LEXIS 4639 *9 (Sept. 21, 20 I O)(finding that the U.S. Supreme Court's remand of a case involving a guilty plea entered into prior to the decision in Padilla is clear indication that the Supreme Court is of the opinion that Padilla is retroactive). 24

28 on the other. When, as in Padilla, the Court invokes language suggesting retroactivity, it is consciously avoiding an explicit determination and expressly intending for lower courts to apply those retroactivity principles. II. The Language and Rationale of Teague Requires that Padilla be Given Retroactive Application. Even if this Court were to hold that Padilla is a new rule, a reading of Teague and an understanding of how Padilla 440 motions really work, inevitably leads to giving Padilla retroactive effect. The formula adopted in Teague v. Lane, 489 U.S. 288 (1989) was also adopted by the New York Court of Appeals in People v. Eastman, 85 N.Y.2d 265 (1995). That was a case where a defendant tried to raise an on-the-record-appeal issue in a collateral 440 motion after a conviction was fmal because of a new decision by the U.S. Supreme Court. Teague also involved the same situation - a defendant, after his appeals had been denied, tried to raise an appeal issue in federal collateral review on the grounds that the new case of Batson v. Kentucky, 476 U.S. 79 (1986), would change the result of his appeal because the prosecutor's peremptory challenges appeared racially motivated. An important rationale which governed the Supreme Court's creation of the retroactivity rule in Teague was as follows: Retroactivity is properly treated as a threshold question, for, once a new rule is applied to the defendant in the case announcing the rule, evenhanded justice requires that it be applied retroactively to all who are similarly situated. 25

29 Teague v. Lane, supra, 489 U.S. at 301. Therefore, since Batson had been decided before Batson's conviction was final, it was fair that all those whose convictions were not final would obtain the benefit of the rule. Others, such as Mr. Teague, could not use collateral review to raise Batson claims in their cases that had already become final. This similarly situated argument has been adopted by federal courts in regard to another area of constitutional law. Fraser v. South Carolina, 430 F.3d 696, n. 5 (4 th Cif. 2005)("Affording Frazer the benefit of Flores-Ortega comports with the Supreme Court's emphasis that a given constitutional rule be applied uniformly and consistently within each class of appeal, so as to avoid an unjust disparity in the treatment of similarly situated defendants")( emphasis added). Of course, application of that rationale to the case at hand requires that Padilla be retroactive in this case. In Padilla, defendant's conviction had already become final and his motion to vacate his plea of guilty was filed after his conviction was final and of course, the Supreme Court's decision finding that Padilla had the right to be informed of the dire immigration consequences was issued after his conviction became final. Therefore, as Justice O'Connor stated in Teague, "evenhanded justice requires that it be applied to all who are similarly situated." Teague v. Lane, supra, 489 U.S. at 301,304. Defendant, is, of course, one of those similarly situated people, he filed his motion after his conviction became final just like Mf. Padilla. That analysis makes perfect sense. It would be absurdly unfair for the Court to find 26

30 in Padilla that attorney standards in 1997 required that defense counsel and the defendant know the succinct and clear immigration consequences of the conviction because of the passage of AEDPA and lralra,12 but on Deceber 23, 1996, four months after the passage of these laws and seven days before 1997 rolled around, counsel need not address the issue properly. This case happened almost at the same exact time as Mr. Padilla's plea of guilty and it would not make any sense not to apply the same law. Such an absurd result would never be countenanced by the Supreme Court and should not be countenanced by this Court. As Justice O'Connor said in Teague, similarly situated defendants to the one who obtained the benefit of the new rule should also obtain the benefit. Of course, People v. Eastman, does not require a different result because in that case the Court was asked to allow a CPL 440 motion to raise an issue that was in the record on appeal and was already addressed in the appeal. The defendant in Eastman wanted to apply a decision of the Supreme Court (Cruz v. New York, 481 U.S. 186) which occurred after Eastman's conviction became final and he wanted to raise the matter by a collateral attack in the form of a CPL 440 motion. However, Cruz had garnered the benefit of the new rule before his conviction was final and he was not similarly situated 12 That is not to say that the ambit of Padilla will go back forever. Courts could still limit its temporal scope by determining that at the time of a particular plea, knowledge of immigration consequences was not reasonably required of defense counsel. Some have suggested that prior to AEDPA in April of 1996, attorneys were not required to have such knowledge. 27

31 with Eastman. Therefore, the Teague formula for appeals issues was followed and ultimately the Court found that Cruz was retroactive because of one of the exceptions outlined in Teague. People v. Eastman, supra, 85 N.Y.2d at But, importantly, Teague applied because the new rule was issued for a defendant whose conviction had not become final and therefore it would only automatically apply to those who were similarly situated, i.e., their cases had not become final. (Of course, in Eastman, the Court found an exception). Interpreting Teague in this way also makes sense because the Supreme Court has ruled that ineffective assistance of counsel claims under Strickland should always be done by collateral attack anyway. Massaro v. U.S., 538 U.S. 500 (2003). The law in New York is essentially the same. People v. Kuar, 73 A.D.3d 1084 (2d Dept. 201 O)(Padilla claims are de hors the record and cannot be raised on appeal); People v. Rivera, 71 N.Y.2d 705, 709 (1988); People v. Love, 57 N.Y.2d 998 (1982); People v. Jiggetts, 178 A.D.2d 332 (1st Dept. 1991). Therefore, since the claim is always raised on collateral attack, it does not make sense to say that a certain issue cannot be raised on collateral attack because of retroactivity problems. Even more important, as the Court knows, almost all of the immigration related motions, like Padilla. occur well after the defendants have served their time, done their punishment, and thus, their convictions are all final because the time for an appeal is well past. That is because they did not discover their attorney's misfeasance, like Mr. Padilla, 28

32 until they are placed in deportation proceedings several years later when they finish their sentence, get rearrested, or in most cases, when they apply for a green card, apply for citizenship, or, like this defendant, when they travel and try to re-enter the United States, not realizing that they are in serious immigration trouble. Thus, collateral attack after the conviction is final is usually the only option open to them and CPL fully allows it in cases where the facts are not in the record on appeal. (Of course, Padilla claims always require that facts be added to the record). \3 All of the Teague-Eastman-Pepper 14 type cases involve different situations from Padilla: these are situations where defendants are serving long sentences and are trying to obtain their freedom as a result of a new precedent occurring well after their convictions have become final. Therefore, in Padilla cases there is not the dire need to use Teague retroactivity analysis to preserve the convictions which are keeping dangerous criminals injail. Padilla motions always occur on collateral attack, not only after the convictions are final, but often after the sentences have been served or completed. It should be noted that retroactivity analysis under Teague/Eastman has never been 13 Padilla motions always include facts off-the-record that cannot be raised on appeal because the claim involves private conferences between attorney and client where immigration either was or was not discussed; and the defendant must show that he would not have taken the plea had he been given the correct advice, another off-the-record fact. People v. Kuar, 73 A.D.3d 1084 (2d Dept. 2010). 14 The Pepper line of cases are not really applicable because they involve the retroactive application of new New York State precedents. However, those cases are cited to show how these retroactivity cases involve the application of on-the-record-appeal issues in a collateral attack, which are generally disallowed. 29

33 applied to block ineffective assistance of counsel claims raised on collateral attack under Strickland. The Kahre and Bennett Courts implied that it had when they discussed Williams v. Taylor, 529 U.S 362 (2000). But in Taylor the Supreme Court was not deciding whether a new case should be applied retroactively at all. They were simply interpreting language in the habeas statute which only allowed a federal court to reverse a conviction when the opinion of the state court was "contrary to.., established federal law" 28 U.S.c. 2254(d)(1). They were using Teague because they found that the standards were the same. Of course, the issues raised in Williams, like respect for state courts, is not relevant at all here where it is the New York State Court ruling upon the case under CPL which has its own procedures and statutory language. That is a very important point, because in Williams the state court did not use retroactivity analysis at all to block the claim of ineffective assistance of counsel. The state court considered the claim, held hearings on the claim, and, the appellate court found that the errors were not prejudicial. Common law retroactivity was not a part of the decision at all. And, the only reason that Teague was part of the federal case was that the Court ruled that the standard was the same as that set forth in a federal jurisdictional statute. Again, our interpretation of Teague makes sense because the Strickland claim in Taylor had to be done by collateral attack and the state court entertained the claim without any application of retroactivity analysis to block the claim. That is what should occur here. Of course, it should be noted that in Taylor they did find that Strickland was 30

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