This decision has been referenced in a table in the New York Supplement.
ADA Gamaliel Marrero, for the People.
Paul Brenner Esq., for the Defense.
ROBERT D. KALISH, J.
Upon the submitted papers, the Defendant, Errol Burrell's motion pursuant to CPL 440.10 to vacate three judgments of conviction rendered against him in three separate criminal actions based upon three guilty pleas is hereby denied without a hearing as follows:
In the instant motion the Defendant is moving to vacate three pleas and judgements rendered in three separate criminal actions:
On docket number 2007KN066005, the Defendant was charged with violating Penal Law §§ 221.10-Criminal possession of marihuana in the fifth degree (Class B Misdemeanor); 221.05-Unlawful possession of marihuana (Violation) and 240.20-Disorderly Conduct (Violation). On August 21, 2007, the Defendant was arraigned on said charges; and he plead guilty to Penal Law § 240.20. The Defendant was sentenced to time served.
On docket number 2008KN033846, the Defendant was charged with New York Administrative Code 10-125-Consumption of alcohol in public (Violation); Penal Law §§ 221.10-Criminal possession of marihuana in the fifth degree (Class B Misdemeanor) and 221.05-Unlawful possession of marihuana (Violation). On May 5, 2008, the Defendant was arraigned on said charges; and he plead guilty to Penal Law § 240.20. The Defendant was sentenced to time served.
On docket number 2008KN078826, the Defendant was charged with violating Penal Law §§ 221.10-Criminal possession of marihuana in the fifth degree (Class B Misdemeanor) and 221.05-Unlawful possession of marihuana (Violation). On October 22, 2008, the Defendant was arraigned on said charges; and he plead guilty to Penal Law § 240.20. The Defendant was sentenced to time served.
Parties' Arguments Defense counsel argues in sum and substance that the Defendant's previous three defense counsel in each of the three cases under docket numbers 2007KN066005, 2008KN033846 and 2008KN078826 failed to inform the Defendant of the potential immigration ramifications prior to the Defendant pleading guilty in each of the cases respectively. Defense counsel argues that at no time did the Defendant's three previous counsel discuss with the Defendant his status as a resident alien, and that said prior counsel failed to inform the Defendant that a criminal conviction could be used in the future as a basis for removing the Defendant from the United States. As such, the Defense argues that the Defendant was effectively denied his constitutional right to effective assistance of counsel pursuant to Padilla v. Kentucky (130 S Ct 1473  ). Defense counsel indicates that his affirmation is " based upon information and belief, the source being a review of the files maintained by the defendant with respect to this matter, which statement, on that basis, I [Defense counsel] believe to be true." The Defense does not attach an affidavit from the Defendant.
In opposition, the People argue that the Defendant's motion should be dismissed as pursuant to the Supreme Court of the United States' decision in Chaidex v. United States (133 S Ct 1103 [US Feb 20, 2013] ) that Padilla v. Kentucky ( Padilla v. Kentucky, 559 U.S. 356  ) is not applied retroactively to convictions that occurred prior to 2010. The People further argue that the Defendant is not subject to deportation as a result of entering the guilty pleas to Penal Law § 240.20 in the three underlying criminal actions, and therefore the Defendant's three prior counsel had no duty to warn the Defendant that he could be deported. The People argue that had prior counsel advised the Defendant that he would be potentially subject to deportation due to pleading guilty to Penal Law § 240.20 in the three underlying cases, said advice would have been misleading. The People further argue that the motion papers do not include an affidavit by the Defendant attesting to his personal knowledge of his communications with his previous attorneys. The People also argue that according to the Defense counsel the Defendant is currently a legal permanent resident in the United States, and that upon investigation by the People, as of April 29, 2013 the Defendant is not involved in removal proceedings. Finally, the People argue that the Defendant's three previous counsel all provided him with effective assistance and that there is insufficient reason to believe that the Defendant would not have plead guilty in each of the three cases but for the counsel's alleged failures to advise him of the immigration consequences of each guilty plea.
Analysis of Law
The Defendant's burden on a motion to vacate his guilty plea and the judgment entered against him ...