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People v. Toribio

Supreme Court, Bronx County

February 27, 2017

The People of the State of New York,
v.
Claudio Toribio, Defendant.

          For the People: ADA Dmitriy Povazhuk, Office of the Bronx District Attorney

          For Defendant: John Russo, Esq.

          April A. Newbauer, J.

         Defendant Claudio Toribio has moved for a second time for an order pursuant to Criminal Procedure Law section 440.10 to vacate his conviction of criminal sale of a controlled substance in the fourth degree in violation of Penal Law section 220.09 upon his plea of guilty. This motion is predicated on ineffective assistance of counsel. The defendant's principal claim is that his trial attorney misinformed him of the possible immigration consequences of his plea. The defendant also asserts an actual innocence claim based in part on an affidavit of his former co-defendant, his brother. The court reviewed the court file, previous motions and decisions and the following papers:

*Notice of Motion to Vacate Conviction, Affirmation of Counsel, Affidavits of Defendant, Affidavit of Ariel Toribio, and Plea Allocution minutes;
*Affirmation in Opposition and Memorandum of Law;
*Supplemental Affirmation in Opposition and Exhibits 1 and 2.

         After consideration of the relevant statutes and case law, the defendant's motion is granted to the extent that a hearing will be held to consider the issue of the nature of the immigration advice, if any, given to the defendant prior to his entry of a guilty plea.

         On January 5, 2007, the defendant was indicted for criminal possession of a controlled substance in the third degree (Penal Law §220.16(1)) and related charges. On August 17, 2007, the defendant was convicted upon a plea of guilty to criminal possession of a controlled substance in the fourth degree with the promise of a six month sentence split with a term of five years' probation and dismissal of the charges against his co-defendant and brother, Ariel Toribio. [1] On September 21, 2007, the defendant was sentenced to five years' probation. After the defendant was sentenced, the People dismissed all charges in the indictment against his co-defendant, Ariel Toribio. The defendant did not file a notice of appeal.

         On February 10, 2014, U.S. Immigration and Customs Enforcement ("ICE") sent correspondence to the Bronx County Supreme Court requesting a certified copy of the complaint under indictment number 4620-2006 and the Judgment and Conviction. Upon reviewing the file, it appears the information was conveyed on February 18, 2014. Thereafter, on April 1, 2014, the defendant filed his first CPL §440.10 motion through his new attorney, alleging that his prior attorney was ineffective for misadvising him that his guilty plea would not affect his immigration status and that his plea was involuntary because he did not speak or understand English. In a decision and order dated December 19, 2014, the court (Marvin, J.) denied defendant's motion without a hearing, finding "[d]efendant's bare, self-serving allegations are simply insufficient to warrant a hearing." Defendant failed to provide sworn allegations or evidence to substantiate his contention that his plea attorney misadvised him regarding the immigration consequences of his guilty plea. He also failed to explain why he did not provide an affidavit from his attorney. [2]

         On September 28, 2016, the defendant filed this second CPL §440 motion, claiming again that he did not understand the proceedings because of lack of translation, that his trial counsel was ineffective for misadvising him of the immigration consequences of his plea, and for the first time claiming that he is actually innocent. Defendant moves to vacate his judgment of conviction and to set aside his sentence pursuant to CPL section 440.10 on the grounds that the judgment was obtained in violation of defendant's Sixth and Fourteenth Amendment rights under the Federal and New York State Constitutions. The defendant alleges that had he known the immigration consequences he faced, he would not have accepted the plea offer and would have insisted on going to trial. This time the defendant provides a detailed affidavit in which he alleges that he was advised that the plea to criminal sale of a controlled substance in the fourth degree would not affect his immigration status as a lawful permanent resident, nor would it create a barrier to his becoming a United States citizen. The People oppose defendant's motion, contending that the claims have been previously determined on the merits are there has not been a retroactive change in the law governing the issue of ineffective assistance. See CPL § 440.10(3)(b).

         The defendant's claim that he misunderstood the terms of the plea or court proceedings because of lack of an interpreter is rejected for the reasons stated by the court the prior motion. Further motion practice on this ground is unwarranted. See CPL §440.10(3)(b).

         However, the defendant's claim of ineffective assistance of counsel cannot be decided without a hearing. Even prior to the Supreme Court's ruling in Padilla v. Kentucky, 559 U.S. 356 (2010), misinforming a lawful resident alien that a guilty plea to a narcotics felony would not subject him to deportation could amount to ineffective assistance of counsel if the defendant also established a prima facie showing of prejudice. See People v McDonald, 1 N.Y.3d 109 (2003). The defendant alleges that his attorney misled him on two grounds: 1) that he did not face deportation as a result of his plea; and 2) that he would not face barriers in becoming a United States citizen.

         Conclusory allegations of ineffective legal assistance combined with the existing record may suffice to deny a defendant a hearing. See People v. Zeh,22 N.Y.3d 1144 (2014), citing People v. Satterfield, 66 N.Y.2d 796 (1985). Where the People submit detailed proof that refutes the defendant's statements conclusively, a court may reasonably deny the defendant's motion without a hearing. See, CPL §440.30(4)(d); People v Samandarov, 13 N.Y.3d 433 (2009). CPL §440.30(4)(d)(I) provides that in considering the merits of a motion to vacate a conviction, the court may deny it without a hearing if the allegations supporting the motion are made solely by the defendant and is unsupported by any other affidavit or evidence, and under these and all the other circumstances attending the case, there is no reasonable possibility that such allegation is true. The failure to present a supporting affidavit from the prior counsel or an explanation for the failure to do so has been repeatedly upheld as justifying the summary denial of a defendant's post conviction motion. See, e.g., People v. Wright,27 N.Y.3d 516 (2016); P ...


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