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People v. Clemente

Supreme Court, Bronx County

November 2, 2017

The People of the State of New York, Plaintiff,
Jesus Gonzalez Clemente, Defendant.

          For the People: Assistant District James J. Wen, Bronx County District Attorney's Office

          For Defendant: Patrick Crowley, Esq., The Kuba Law Firm

          MARTIN MARCUS, J.S.C.

         By Indictment Number 3752/12, the Grand Jury of Bronx County charged the defendant, acting in concert with co-defendants David Yopigua and Manuel Gonzalez Cervantes, with Attempted Robbery in the First Degree and related offenses. The indictment alleged that in the course of attempting to steal the complainant's wallet, the defendant and his co-defendants struck the complainant with a belt buckle and a glass bottle. On February 25, 2015, before this Court, the defendant pled guilty to Attempted Assault in the Second Degree as part of a plea agreement pursuant to which the defendant was to be sentenced to three years' probation. After the defendant's plea, but before his sentencing, the defendant was interviewed by the New York City Department of Probation ("Probation") in the preparation of the Presentence Investigation Report. During that interview, the defendant acknowledged that he had been born in Mexico, and had entered the United States illegally in 2008. On March 31, 2015, this Court imposed the agreed-upon sentence. A Spanish interpreter was used for both the defendant's plea and sentencing. The defendant has not appealed the judgment of conviction.

         In October of 2015, the United States Department of Homeland Security, Immigration and Customs Enforcement ("ICE") commenced removal proceedings against the defendant pursuant to Immigration and Nationality Act ("INA") § 212(a)(6)(A)(i), because he is "an alien present in the United States without being admitted or paroled, or who arrived in the United States at any time or place other than as designated by the Attorney General, " and § 212(a)(2)(A)(i)(I), because he is "an alien who has been convicted of, or who admits having committed... a crime involving moral turpitude...." See People's exhibit 3.

         The defendant now moves, through counsel, pursuant to CPL § 440.10 to vacate the judgment of conviction on the ground that he received ineffective assistance of counsel. Specifically, the defendant alleges that his "attorneys, " one of whom he names as "Jenny, " falsely advised him that he "should not be afraid if the judge mentions that I could be deported, but that would not be my case as long as I followed the rules of my probationary period and I didn't get into anymore trouble" and that they had "been able to help other clients by using this method and no one has been deported." At the plea proceedings, Jenny Semmel and Sarah Lustbader, of The Bronx Defenders, appeared on behalf of the defendant; only Ms. Semmel was present at the defendant's sentencing.

         When a defendant raises the issue of ineffective assistance of counsel, the court must first "determine on [the] written submissions whether the motion can be decided without a hearing, " and the defendant is required to show that the facts he seeks to establish are "material and would entitle him to relief." People v. Satterfield, 66 N.Y.2d 796, 799 (1985), (citing CPL §§ 440.30[1]; 440.30[4][a]). Under New York law, to prevail on a claim of ineffective assistance, a defendant must demonstrate that his attorney failed to provide meaningful representation. People v. Benevento, 91 N.Y.2d 708, 713 (1998). "In the context of a guilty plea, a defendant has been afforded meaningful representation when he or she receives an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel." People v. Ford, 86 N.Y.2d 397, 404 (1995), overruled on other grounds, People v. Peque, 22 N.Y.3d 168 (2013). Under federal law, a defendant must show, first, "that counsel's representation fell below an objective standard of reasonableness, " and, second, that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). While in New York the Strickland prejudice prong is not "applied [] with [] stringency, " it is "a significant but not indispensable element in addressing meaningful representation." People v. Stultz, 2 N.Y.3d 277, 283-84 (2004).

         A court may summarily deny a motion to set aside a judgment pursuant to CPL § 440.10 if: "[t]he motion is based upon the existence or occurrence of facts and the moving papers do not contain sworn allegations substantiating or tending to substantiate all the essential facts " CPL § 440.30(4)(b). In this case, the defendant has failed to include a corroborating affidavit from either of his former attorneys - one of whom, Ms. Semmel, is currently a supervising attorney at The Bronx Defenders - or from anyone else who might have knowledge of the circumstances of the plea, nor has he provided an explanation for his failure to do so. "The failure to include an affirmation from counsel, or an explanation for the failure to do so, has been held to warrant the summary denial of a defendant's postconviction motion." People v. Wright, 27 N.Y.3d 516, 522 (2016) (internal citations omitted); see People v. Morales, 58 N.Y.2d 1008, 1008 (1983); People v. Gil, 285 A.D.2d 7, 11-12 (1st Dept. 2001). Accordingly, the defendant's conclusory, self-serving allegations are insufficient to warrant a hearing, see People v. Ozuna, 7 N.Y.3d 913, 915 (2006), and the defendant's ineffective assistance of counsel claim is denied pursuant to CPL § 440.30(4)(b). See Wright, 27 N.Y.3d at 520-21.

         A court may also summarily deny a motion to set aside a judgment pursuant to CPL 440.10 if "[a]n allegation of fact essential to support the motion (i)... is made solely by the defendant and is unsupported by any other affidavit or evidence, and (ii) under these and all the other circumstances attending the case, there is no reasonable possibility that such allegation is true." CPL § 440.30(4)(d). Here, not only are allegations of essential facts made only by the defendant, but it is clear from the record before the court and from the defendant's own affidavit that there is no reasonable possibility that the defendant can establish that he did not receive meaningful representation or that his attorneys' performance fell below an objective standard of reasonableness. Nor can he establish that he suffered any prejudice as a result of his attorneys' alleged error.

         During the plea proceedings, the following colloquy took place between the Court and the defendant:

THE COURT: Have you discussed with your attorney the immigration consequences of your plea?
THE COURT: Do you understand, and I'm telling you that as a result of this plea, that you may very well be deported and suffer other immigration ...

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