On 22 November 2006, defendant stood accused, by felony complaint filed, of criminal possession of marijuana in the first degree, a class C felony (drug crime); on account of an incident that occurred on 21 November 2006. At his 22 November 2006 arraignment, the court conditionally released defendant, to the supervision of the Department of Probation, and adjourned the case to Part 9, which thereafter transferred the case to County Court. On 25 January 2007, the case was returned to Part 9 of the herein court, and adjourned to 20 March 2007. On 20 March 2007, the court revoked defendant’s conditional release status, evidently because of his failure to participate in therapy as directed by the Department of Probation, and because of his arrest on 18 February 2007 for assault in the third degree. The court fixed bail at $25,000 bond, $15,000 cash and adjourned the case for three days, to 23 March 2007, for disposition. Defendant did not post bail.
A New York Drug Crime Lawyer said according to the transcript of a joint plea proceeding conducted on 23 March 2007, another individual was arrested with defendant, also for felony possession of marijuana on account of the incident on 21 November 2006, and both defendant and the other individual were represented from the outset by a lawyer. During the course of the single plea proceeding conducted on 23 March 2007, the court converted the felony complaint pending against defendant, and the felony complaint pending against the other individual, to accuse each of misdemeanor possession of marijuana. No supporting deposition demonstrating that scientific tests were performed on the substance forming the basis of the prosecution is annexed to the converted document, designated as a misdemeanor complaint, has been filed against defendant. Moreover, by the factual part of the document, the complainant attests only that defendant “possessed” more than 10 pounds of a “greenish brown leafy substance believed to be marijuana,” and that “the arresting detective who recovered the evidence believes the substance to be marijuana based on his years of training as a police officer and detective, its appearance, color, odor and texture and its packaging which is commonly used by drug dealers. But while the other individual pleaded guilty to the lesser charge of disorderly conduct, defendant pleaded guilty to violating the Penal Law of possessing more than two ounces of marijuana, the crime of which he then stood accused. The court sentenced each to a conditional discharge and the maximum fine permissible for the offense to which each pleaded guilty.
Neither defendant nor the other individual waived the right to be prosecuted by information when arraigned on the converted accusatory instruments immediately before entering their pleas of guilty. A New York Drug Possession Lawyer said during the course of the joint plea allocution, the court asked defendant and the other individual if they consented to one attorney representing both of them. Each answered “yes.” The court then asked if there is no conflict of interest in any way. Each responded “no.” When both were asked if they had discussed the case with their attorney before pleading guilty, each answered “yes”. Following questioning about educational background and mental status, defendant stated he has a fifth grade education; the other completed high school. The court asked defendant if he understood that he was pleading guilty to a crime, that he would have a criminal record, and that the crime is punishable by up to a year in jail, a fine, or a combination of both, and the defendant responded “yes.” Defendant also answered “yes” when the court asked if he understood that, by pleading guilty, he was also waiving his right to a trial and his right to appeal. Oddly, when the court asked “do you wish to plead guilty to a crime,” defendant and the other individual each answered “yes.” Ultimately, defendant admitted that on 21 November 2006, he possessed marijuana, the weight of which was not specified. A Nassau County Drug Possession Lawyer said the other individual admitted that he behaved in a disorderly manner on that date. As noted, the court sentenced each to a conditional discharge and a fine. Other than noting his appearance, joining in the People’s application to reduce the charge, waiving a reading of the new charge, and, at the conclusion of the proceeding, addressing defendant’s bail status, defendant’s counsel (for the plea) stated nothing on the record. Included in the court file is a certificate of relief from civil disabilities, based on an application defendant made on 6 November 2008, by which he specifically sought a certificate that will relieve him from any bars that would prevent him from traveling.
On 18 August 2010, defendant made an application to vacate the judgment of conviction and underlying plea entered on 23 March 2007. Asserting that his lawyer at that time affirmatively misrepresented the effect that his guilty plea would have on his immigration status, that his lawyer was burdened with a conflict of interest, and that his lawyer did not properly advise him about that conflict; defendant based his application on ineffective assistance of counsel.
Defendant brought to the court’s attention a decision dated 24 May 2011 issued by the Board of Immigration Appeals upholding a ruling that an alien who violates an order of protection “is deportable.”
The court has reviewed and takes judicial notice of the court file concerning defendant’s arrest in 2007 that was one of the triggers of the revocation of his bail status in the herein case.
A Queens Drug Possession Lawyer said the review reveals that on 18 February 2007, defendant was accused of assault in the third degree, that he was released on bail during the pendency of the action, that on 13 November 2007 he pleaded guilty to harassment as a violation, that he was on that date sentenced to a conditional discharge and a $200 fine which he paid, that the court vacated a temporary order of protection issued in favor of another person, and that the court did not issue a permanent order of protection. The court has reviewed, not only the plea minutes defendant submits, but also the court file in a matter concerning his 2009 arrest, for criminal contempt in the second degree where defendant retained the same lawyer to represent him again, to which the People point as a claimed demonstration that the lawyer’s representation was effective.
A review of the court file reveals that the court issued a temporary order of protection in favor of another person in yet another matter, apparently now sealed, that defendant was accused of violating that order of protection, that he was released on bail during the pendency of the prosecution, that on 23 November 2010 he pleaded guilty to attempted criminal contempt in the second degree, a class B misdemeanor, and that he admitted that notwithstanding the existence of a “stay away” order of protection he was in close proximity to the named person in the order on 10 September 2009. The court made a commitment that he would not be sentenced to jail, and on 24 January 2011, the court sentenced defendant to one year of probation.
It must be noted that, in order to prevail on an application to vacate a judgment of conviction on account of the ineffective assistance of counsel, a defendant must demonstrate that his or her attorney’s professional services were deficient, that they fell below an objective standard of reasonableness, and that he or she is thereby prejudiced; that absent the deficiency, the result would have been different. Where the services rendered involve negotiating a plea, the defendant must satisfy the prejudice component by demonstrating that there is a reasonable probability that, but for counsel’s errors, he or she would not have pleaded guilty and would have insisted on going to trial.
Moreover, the United States Supreme Court recently made it clear that not only does affirmatively misinforming a client about the immigration consequences of conviction premised on a guilty plea constitute ineffective assistance of counsel, so, too — assuming, obviously, that the defendant is not a citizen — does failing to render any advice whatsoever on that topic. The Appellate Term recently ruled that the holding in the aforesaid case should be applied retroactively, thus making that ruling applicable in the case at bar.
Every defendant is entitled to zealous, conflict-free representation by someone single-mindedly devoted to his or her best interests, and taking on representation that will burden the attorney with conflicting loyalties also constitutes ineffective assistance. Where a defendant demonstrates the existence of an actual conflict of interest, prejudice can be presumed.
Here, the court finds the defendant’s and the other individual’s testimonies essentially credible. Moreover, even if their lawyer did not affirmatively misinform defendant of the immigration consequences of his plea, it is clear that, at best, he was silent on the subject.
Against the backdrop of the lawyer’s candid admission that, in March, 2007, he was unaware that Congress had in 1996 significantly changed the law regarding the mandatory immigration consequences resulting from certain convictions beyond those involving “moral turpitude” — most notably convictions stemming from possession-of-more-than-30-grams-of-marijuana and possession-of-a-controlled-substance charges — coupled with his similarly candid admission that, even though he thought defendant was Jamaican, he did not ask defendant about his immigration status, and that status did not enter into his considerations when he was negotiating with the People, or, tacitly, when advising defendant to accept their offer. The court must find that he did convey to both defendant and the other individual (whom he essentially dealt with jointly and who each acknowledged during the perfunctory plea allocution that they were pleading guilty to a crime) that the only real consequence of each of the pleas was payment of a fine; that both pleas were “no biggy.”
The court is even more disturbed by what the lawyer acknowledges is the “inherent” conflict of interest under which he labored, a conflict that became more acute when the People presented him with “no split” offers compelling one of two defendants to plead guilty to a misdemeanor so that the other could plead guilty to a violation. And the court’s concerns are not assuaged by the lawyer’s without-inquiry acceptance of the People’s rationale for the differing offers, most notably the claim that defendant exhibited consciousness of guilt by running from someone in “regular clothes” who was pointing a gun at him in his crime-ridden neighborhood and who did not announce herself as a police officer.
In the instant case, it is clear that defendant was deprived of the effective assistance of counsel; a fact that does not retroactively disappear merely because defendant later retained the same lawyer, whom he had trusted, to represent him in another matter. Indeed, the real issue to be determined is whether defendant was prejudiced by the ineffectiveness of his representation. The court concludes that he was.
As the United States Supreme Court has itself recognized, being able to remain in the United States is often more important to a defendant than any potential jail sentence. In this case, although defendant was incarcerated on the day he entered his plea of guilty, the judge, upon revoking defendant’s conditional-release status, adjourned the case for “disposition” for only three days; that he did so to briefly punish defendant for violating the conditions of his at-arraignment release. Since any attorney single-mindedly devoted to defendant’s bests interests would have made an appropriate application for adjustment of defendant’s bail status if he elected to proceed to trial, and since defendant made bail on his other pending cases, there is no support for the People’s speculation that defendant would have remained in jail awaiting trial if he rejected their plea offer. Furthermore, the chance that Defendant would be sentenced to any significant jail time if convicted of the original charge of criminal possession of marijuana in the first degree is remote, and the probability that he would be sentenced to probation without jail is high, whereas, it appears, the immigration consequence — automatic removal — is the same whether defendant were convicted of the original felony charge laid against him, or of the misdemeanor possession-of-marijuana charge to which he pleaded guilty. These circumstances alone demonstrate that it is at least reasonably likely that, had the lawyer properly advised him about the immigration consequence of his misdemeanor plea, defendant would have rejected the offer and insisted on going to trial. Indeed, given the paucity of real, direct evidence of defendant’s guilt, not only would rejection of the plea offer have been rational, it would have been prudent.
On the question of whether defendant’s other legal difficulties also have adverse immigration consequences so as to render his claims of prejudice, in this regard, moot, defendant has come forward with a recently decided Board of Immigration Appeals case which suggests that his conviction for attempted criminal contempt in the second degree may subject him to removal. But apart from the fact that the conviction challenged here subjects defendant to the more dire consequence of automatic removal, defendant raised another issue which, standing alone, warrants vacatur of the plea and judgment, i.e., the inherent, and ultimately impossible conflict of interest burdening the lawyer, who also represented the other individual charged in the marijuana possession.
The record demonstrates that, while the lawyer actually conferred at least once with the other individual, alone, outside of court, the lawyer never met with defendant alone, and that he always had his discussions with him in the presence of the other individual charged, in court, where conversations are often hurried and somewhat public. Indeed, there is no indication that the lawyer even consulted with defendant in “the pens.” The record also demonstrates that it was only through the other individual that the lawyer received payment for his services to defendant. The record thus at least suggests that the lawyer regarded the other individual charged as his primary client, even as it demonstrates that he regarded the disparate legal positions of his two clients as essentially the same, and that he conveyed that sameness to both of them. Because the People here insisted that their offer to the other individual of a plea to a non-criminal offense was conditioned on defendant’s acceptance of a plea that gave him a criminal record, a consequence that has lasting adverse effects, even for those who are not subject to deportation, the lawyer could not possibly single mindedly represent either of them without compromising his obligations to the other.
Hence, the court finds that there was an actual conflict of interest, and that the conflict infected defendant’s plea of guilty. Moreover, the People’s assertions to the contrary notwithstanding, the perfunctory inquiry conducted on an apparently defective accusatory instrument during the equally perfunctory plea allocution does not demonstrate either that defendant understood the nature of the conflict, or that he knowingly waived it.
Accordingly, the judgment of conviction with its underlying plea of guilty is ordered vacated; the felony complaint is restored, the matter is referred back to Criminal Term Part 9P, and defendant is directed to appear with counsel in that part.
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