People v Bakntiyar 2014 NY Slip Op 32137(U) June 27, 2014 Supreme Court, Kings County Docket Number: 10521/2012 Judge: Danny K.

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1 People v Bakntiyar 2014 NY Slip Op 32137(U) June 27, 2014 Supreme Court, Kings County Docket Number: 10521/2012 Judge: Danny K. Chun Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication.

2 [* 1] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS: CRIMINAL TERM PART ){ THE PEOPLE OF THE STATE OF NEW YORK SHAKH BAKNTIY AR, -against- DECISION AND ORDER IND. NO /2012 Defendant ){ DANNY K. CHUN, J. The defendant moves to vacate his judgment pursuant to Criminal Procedure Law arguing that his attorney was ineffective in that he provided erroneous information regarding the immigration consequences of his guilty plea. The People oppose the defendant's motion. The defendant, a citizen of Azerbaijan, entered the United States on or about August 31, 1993 as a Lawful Permanent Resident. The defendant is currently under removal or deportation proceedings. The defendant was charged, under Kings County indictment number , with five counts of Criminal Possession of a Controlled Substance in the Third Degree (P.L [1], [12]), one count of Criminal Possession of a Controlled Substance in the Fourth Degree (P.L [1]), one count of Criminal Possession of a Controlled Substance in the Fifth Degree (P.L [5]), three counts of Criminal Possession of a Controlled Substance in the Seventh Degree (P.L ), and three counts of Criminally Using Drug Paraphernalia in the Second Degree (P.L [3], [2]). 1

3 [* 2] On April 8, 2013, the defendant pleaded guilty to one count of Criminal Possession of a Controlled Substance in the Third Degree (P.L [1]). On June 3, 2013, the defendant was sentenced to a term of imprisonment of six months followed by five years' probation. Subsequently, on July 1, 2013, the defendant pleaded guilty to Promoting Prison Contraband in the Second Degree (P.L [2]), and was sentenced to a term of imprisonment of ninety days. The defendant did not appeal the judgment of conviction. The defendant now moves to vacate the judgment of his conviction alleging that his constitutional rights were violated because he did not receive effective assistance of counsel. Specifically, he alleges that his prior counsel, Mr. Lance Lazzaro, Esq., failed to advise and inform him on the immigration consequences he was facing before taking the plea. The defendant argues that had he known that the guilty plea would result in the commencement of removal proceedings, he would not have plead guilty. In addition, he alleges that his guilty plea was obtained in violation of due process because it was an unknowing, unintelligent and involuntary guilty plea, and that Mr. Lazzaro pressured him to take the plea. The defendant states that he had lied under oath when he took the plea and requests to be given an opportunity to withdraw the guilty plea and stand trial. A defendant in a criminal proceeding is constitutionally entitled to effective assistance of counsel. Strickland v. Washington, 466 US 668 (1984); People v. Linares, 2 N.Y.3d 507, 510 (2004); see U.S. Const., 6th Amend.; N.Y. Const., art Under the two-prong test of the federal standard, a court must decide ( 1) whether the counsel's performance fell below an 2

4 [* 3] objective standard of reasonableness and (2) whether the defendant suffered actual prejudice as a result. Hill v. Lockhart, 474 U.S. 52, (1985); Strickland v. Washington, 466 U.S. 668, 687 (1984). In order to satisfy the second prong, a defendant must show that there is a reasonable possibility that, but for the counsel's error, he would not have pied guilty and would have insisted on going to trial. Hill v. Lockhart at 59. In contrast to the federal standard, which looks to the outcome of the case, in New York, "[ s ]o long as the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation, the constitutional requirement will have been met." People v. Baldi, 54 N.Y.2d 137, 147 (1981). "In the context of a guilty plea, a defendant has been afforded meaningful representation when he... 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). Defendant bears the burden of overcoming the strong presumption that defense counsel rendered effective assistance by demonstrating the absence of strategic or other legitimate explanations for counsel's alleged errors. People v. Colville, 79 A.D.3d at 197. Also, in New York, a defendant must satisfy the "prejudice" requirement by showing that absent counsel's alleged error, he would have insisted on ajury trial. People v. Rodriguez, 188 A.D.2d 623 (2d Dept 1992). In order to establish that the defendant would have insisted on going to trial, an affidavit setting forth the factors that a defendant considers in accepting a plea must be submitted to the court. People v. McDonald, 296 A.D.2d 13, (3d Dept 2002). Some of the factors that must be set out in such an affidavit are the strength of the prosecution's case, the availability of a defense, the likelihood of success at trial, a comparison of the sentence promised with the potential incarceration the defendant faced if convicted after trial, counsel's 3

5 [* 4] advice as to the reasons to accept the plea bargain and a reason why the defendant admitted committing the act. Id. An unsubstantiated claim that the defendant would have insisted on proceeding to trial is insufficient. See People v. McKenzie, 4 A.D.3d 437, 440 (2d Dept 2004); People v. Melio, 304 A.D.2d 247, (2d Dept 2003). There must be objective facts supporting such a claim. Melio at The defendant's claim of ineffective assistance of counsel is based upon the United States Supreme Court's holding in Padilla v. Kentucky,559 U.S. 130 S.Ct (2010). As the Appellate Division-Second Department summarized, the Supreme Court held in Padilla that "where the deportation consequences of a plea of guilty are clear, defense counsel must provide accurate immigration advice, and where the deportation consequences are unclear or uncertain, defense counsel need do no more than advise the defendant that the plea could have adverse immigration consequences." People v. Marino-Affaitati, 88 A.D.3d 742, 743 (2d Dept 2011). In this case, upon examining all of the circumstances, the court finds that the defendant was not deprived of effective assistance of counsel. occurred: During the plea proceeding on April 8, 2013 before this court, the following colloquy THE COURT: You understand that this plea if you are sentenced will result in you having a felony conviction on your records? You understand? THE DEFENDANT: Yes. THE COURT: Also, this may have immigration consequences. And you have discussed that with your lawyer fully, and you understand the consequences? THE DEFENDANT: Yes. THE COURT: Is anyone forcing you to plead guilty? THE DEFENDANT: No. 4

6 [* 5] THE COURT: Are you pleading guilty voluntarily, freely, of your own free will? THE DEFENDANT: Yes. (Plea Proceeding 6). The defendant's argument that he was deprived of effective assistance of counsel is mainly based on the allegation that his lawyer failed to inform him or that he misinformed him of the immigration consequences of his guilty plea. However, the record shows that the defendant was in fact informed of the immigration consequences from his lawyer and also from the court. While the defendant now argues that he lied under oath, the defendant had sworn or affirmed when he took the plea that his statements were true. There is no reason for this court to accept his argument that he was lying before this court back then. In addition, Mr. Lazzaro's affirmation contradicts the defendant's assertion that he was pressured into pleading guilty or that he was misadvised of the immigration consequences. In addition, having been charged with five counts of Criminal Possession of a Controlled Substance in the Third Degree, the defendant was exposed to a potential sentence of up to 25 years on each count, which technically could have been run consecutively, after which he would have potentially been deported. See P.L ; 70.00(2)(b). In exchange for his plea to one count of Criminal Possession of a Controlled Substance in the Third Degree, the defendant was ultimately sentenced to six months in jail followed by five years' probation, which was a favorable offer made by this court over the People's objection. Contrary to the defendant's contention, this court finds that the defendant's attorney was able to negotiate a favorable deal for the defendant. Therefore, this court finds that the defendant failed to show that his counsel's representation fell below an objective standard of reasonableness under the federal rule, or that his attorney did not meet the New York standard of.. meaningful representation." 5

7 [* 6] Wherefore, the defendant's motion to vacate his judgment is denied in its entirety. The foregoing constitutes the decision, opinion and order of the court. Dated: Brooklyn, New York June 26, 2014 JUN I 6