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Court Decides Case Involving Jurisdiction Issue

A New York Family Lawyer said that, defendant, a fugitive for nearly twenty years after pleading guilty to attempted criminal sale of a controlled substance in the third degree in 1991, and moves to either vacate that plea, or have the Court dismiss the case outright. Defendant is not a United States citizen, and claims to have been granted lawful permanent resident status in 1994. Federal authorities in Miami discovered the 1991 warrant issued for defendant’s arrest after he failed to appear for sentencing when defendant attempted to reenter the United States in November 2010 using a passport issued by the Dominican Republic. He was returned to New York to face his long-avoided sentence. He also faces removal from the United States.

A Bronx Visitation Lawyer said that, defendant makes legal challenges to the sufficiency of the plea allocution itself, as well as arguing that his legal representation in 1991 was insufficient under the Supreme Court’s 2010 decision. Defendant also challenges the Court’s jurisdiction to pronounce sentence twenty years after he pled guilty. Finally, defendant makes a post-plea application to have the case dismissed in the interest of justice, ostensibly because he faces mandatory removal by the Department of Immigration and Customs Enforcement as a result of the plea, and will be separated from his three children, who were born in the United States between 1994 and 2001. After filing an affirmation in opposition to all parts of the defense motion, the People entered into new plea discussions and offered defendant an opportunity to substitute a plea to a misdemeanor for the felony plea, with the stated purpose of aiding defendant in the removal proceeding. Upon review of the court file, reports prepared by the Department of Probation in 1991 and in 2010, as well as both parties’ written submissions, and after considering the subsequent oral application to replace the felony conviction, the Court denies the motion.

Defendant was arrested on November 20, 1990, inside 1085 Nelson Avenue in Bronx County. According to the felony complaint, an undercover police officer approached an unnamed, apprehended juvenile at that location, and indicated he wished to buy “perico,” a Spanish word commonly used in narcotics transactions to refer to cocaine. The juvenile directed him to defendant. The officer handed defendant prerecorded buy money, and defendant handed the officer cocaine wrapped in tinfoil. According to an affirmation submitted by ADA in response to an omnibus motion, defendant was arrested within moments of the sale at the same location, and was found in possession of the buy money and fourteen additional tinfoil-wrapped cocaine packages. He was immediately identified by the undercover police officer as the person who sold him cocaine.

A New York Child Custody Lawyer said that, defendant was subsequently indicted. Defendant’s motion for a hearing to suppress the “buy money” and cocaine recovered from his person was granted. Defendant made five court appearances after he was arraigned on the indictment on January 7, 1991. On June 26, 1991, defendant appeared before the Honorable Judge, and pled guilty pursuant to the agreement his attorney negotiated. During the plea allocution, defendant told the Court his full name and he was 28 years old. Defendant affirmed he was pleading guilty to a reduced charge of attempted criminal sale of a controlled substance in the third degree in exchange for a promised sentence of one year in jail. He acknowledged that the plea was voluntary, and he agreed to waive his right to appeal as well as his right to “early release” from jail. Defendant further acknowledged he understood all of his Boykin rights, and was waiving them as well. ADA stated on the record that the People were prepared to “prove beyond a reasonable doubt that on November 20, 1990, at approximately 4:45 pm inside apartment number 5A located at 1085 Nelson Avenue in the Bronx this defendant did sell one tin foil to an undercover police officer in exchange for $20.00, and laboratory analysis indicates that the item sold was, indeed, cocaine.” Defendant, himself, then admitted he sold cocaine on the date and time, and at the location the People indicated.

A Westchester County Family Lawyer said that, on November 18, 2010, defendant was returned to the Bronx for sentencing, and an updated investigation from the Department of Probation was ordered. On February 11, 2011, defendant filed a motion seeking the aforementioned relief. In a sworn affidavit submitted in support of the motion, defendant states, “I was not guilty of sale or possession of drugs. I have never sold or possessed illegal drugs ever in my life.” He further states that “various attorneys from the Legal Aid Society represented me at different times” and that “each attorney… was aware that I was a citizen of the Dominican Republic and that I was not a United States Citizen; that I was legally here in the United States on a ten year tourist visa.” He also claims he “lived in the United States since 1987 when I came on a student visa with a scholarship. I obtained a tourist visa in 1990. My family had been living in the United States. In 1994 I obtained my green card.”

A Bronx Order of Protection Lawyer said that, on April 20, 2011, the parties proposed a disposition in lieu of having the Court rule on the motion, in which the People would agree to allow defendant to withdraw his guilty plea to the felony drug sale and then substitute a plea to the misdemeanor charge of criminal facilitation, under Penal Law 115.00(1). That charge, which is not in the indictment, would require an admission, inter alia, that defendant aided another person who defendant knew was going to commit a felony, which in this case, would have to be criminal sale of a controlled substance. Defendant is anxious to accept this disposition. Both defense counsel and the People state they came up with this proposal because they believe a conviction for this crime would be looked upon more favorably in the pending immigration court removal proceeding.

The issue in this case is whether the motion of defendant to dismiss the case should be granted.

The Court does not agree to this proposal for several reasons. First, this disposition would violate the Criminal Procedure Law’s plea bargaining restrictions. CPL 220.10(5)(a)(iii) provides that a defendant charged with a class B felony in an indictment must plead to at least a class D felony. Therefore, accepting this disposition would create an appellate issue that would likely result in a reversal of the conviction. The Court also refuses to accept an alternative proposal to allow defendant to substitute a plea to misdemeanor narcotics possession, which counsel also believes would be looked upon more favorably by the immigration court, as this substitute plea would also violate CPL 220.10(5)(a)(iii).

Moreover, the record made by both defendant and the People is clear — they have reached this agreement solely to aid defendant in his attempt to avoid removal from the United States. As the Court has continuously reminded both the People and defense counsel, based on its own understanding of immigration law, defendant’s admission to selling narcotics in this case would be admissible in his immigration proceeding, unless there was a legal or due process vacatur of the plea. As both sides acknowledge, a non-citizen convicted of selling narcotics in a state court faces mandatory removal from the United States. 8 USCS § 1227(a)(2)(B)(I). “An alien remains convicted of a removal offense for federal immigration purposes when the predicate conviction is vacated simply to aid the alien in avoiding adverse immigration consequences and not because of any procedural or substantive defect in the original proceeding.”

Defendant factually admitted he sold narcotics, and that guilty plea remains part of the overall record in this case, The evidence before the Court, and presumably the grand jury, shows that after working with an accomplice under the age of sixteen, defendant accepted “pre-recorded buy money” from a police officer posing as a customer, and then personally handed narcotics to that officer. When he was apprehended, he had the marked money tendered for the drugs in his possession, along with fourteen additional tinfoil packages of cocaine. This is far more than mere criminal facilitation. Defendant’s plea admission would almost certainly subject him to removal in this case, regardless of whether the judgment of conviction would reflect the actual felony or a pinch-hitting misdemeanor. Indeed, the advice given about this proposal appears not only to be affirmatively wrong, but is precisely the type of advice the Supreme Court found to be ineffective. For all these reasons, the Court cannot accept this proposal.

Defendant moves to withdraw his guilty plea because he now claims he is not guilty of selling, or even possessing, any narcotics in this case. He also argues that the plea allocution was not sufficiently detailed and therefore it was not a “knowing and voluntary” plea. This application is denied.

At any time prior to sentence, a court is entrusted with discretion to allow a defendant to withdraw a previously entered plea of guilty and be restored to pre-pleading status. CPL 220.60(3). A guilty plea is presumed valid, and a defendant moving to vacate or withdraw a plea has the burden of coming forward with a credible claim that the plea is invalid. A generalized claim of innocence does not in and of itself provide grounds to allow withdrawal of an otherwise validly entered guilty plea. Only in a rare instance will a defendant be entitled to a hearing on a motion to withdraw a guilty plea. At the outset, the Court does not find defendant to be credible. This is relevant not only to the decision on this branch of the motion, but all other parts as well. Defendant has defrauded the Court, as well as the Department of Probation, by claiming two completely different identities, and does not explain whether he is really the person named who was born in 1962 or a person named otherwise, born three years earlier. His current attorney, who provided the Court with a copy of defendant’s passport indicating he was born in 1959, is apparently even confused, since he states in his own affirmation that defendant was only twenty-eight years old in 1990, which would make the date of birth on the passport untrue as well.

Defendant also moves to have his plea vacated because he claims his former attorney never discussed any potential immigration-related consequences that would flow from his conviction in this case. The Court agrees with the decision in a 2011 case that because of the “professional norms prevailing when defendant pled guilty” in this case, prior counsel would not have been ineffective even if she “failed to advise defendant of the immigration consequences of his guilty plea.” Assuming, arguendo, that the said case must be applied retroactively to any case in which a defendant alleges that an attorney failed to provide immigration-related advice to a non-citizen prior to that person’s entering a guilty plea, defendant’s motion nonetheless fails to state a viable claim of ineffective assistance of counsel.

Accordingly, this part of the motion is denied as well.

Defendant next asks the Court to dismiss the case, arguing that it has lost jurisdiction to impose sentence due to the passage of almost twenty years since the guilty plea. CPL 380.30(1) provides that the sentence for a convicted criminal defendant “must be pronounced without unreasonable delay;” otherwise a sentencing court may be divested of its jurisdictionNew York has a strong policy against unreasonable delays in pronouncing sentence, and a defendant is entitled to be promptly sentenced after conviction, and entry of judgment may not be “indefinitely deferred or postponed.” The passage of time alone is not dispositive of whether this right to prompt sentencing has been violated; the time element must be assessed concomitantly with the reason for the delay. Thus, where the People know an absconding defendant’s whereabouts, they must make diligent efforts to secure the defendant’s presence for sentencing, or risk dismissal. However, where a defendant makes a purposeful decision to abscond prior to sentencing, and conceals his or her identity to prevent re-apprehension, that defendant has forfeited his or her claim that the court has lost jurisdiction to pronounce sentence when they are finally returned.

Defendant does not contest the fact that he wilfully absconded. He also does not allege any particular reason for failing to return to Court to face sentencing. The most obvious motive is a generic one many individuals have for failing to appear for sentencing when they know they are facing incarceration — they simply do not want to go to jail. But it is likely there was another motive that relates directly to his right to remain in the United States at that time. Although defendant now claims not to have known of any particular immigration consequences that would befall him as a result of the plea in this case, the probation report prepared after the plea notes defendant claimed he advised immigration authorities about his arrest in this case. If that statement were true, defendant would have been likely advised by immigration authorities that the law in 1991, as it still is today, would require that he be removed from the country based on the narcotics sale he admitted committing. That would have provided yet another motive for his purposeful decision to abscond, and then reappear with a different identity.

Thus, this is not a case where there was an “unreasonable delay” in bringing defendant before the Court for sentencing caused by the People. To the contrary, all of the delay in imposing sentence lies squarely and completely at defendant’s feet. Accordingly, this part of defendant’s motion is denied as well.

For the reasons stated herein, defendant’s motion is denied in all respects. This constitutes the Decision and Order of the Court.

If you have been denied of your constitutional rights, seek the assistance of a Bronx Order of Protection Attorney and Bronx Visitation Attorney at Stephen Bilkis and Associates.

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