Hyperlawhypertext legal databasebeta People v. Ford 86 N.Y.2d 397

← Cases

People v. Ford

86 N.Y.2d 397 Court N.Y. Decision date 1995-10-24 English

Delivered by Simons, J.

Contents

Majority

p. 397
[657 NE2d 265, 633 NYS2d 270]
The People of the State of New York, Respondent, v Rudolph Ford, Appellant.
Argued September 21, 1995;
decided October 24, 1995
p. 399
POINTS OF COUNSEL
Beldock Levine & Hoffman, New York City (Melvin L. Wulf, Peter A. Perlman and Karen Dippold of counsel), David Scheinfeld, Noah Simeon Scheinfeld and Robert Cini for appellant.
I. The court should reject the collateral consequence doctrine as it applies to deportation and guilty pleas. (People v Harris, 77 NY2d 434 ; Boykin v Alabama, 395 US 238 ; People v Harris, 61 NY2d 9 ; LaRossa Axenfeld & Mitchell v Abrams, 62 NY2d 583 ; Mathews v Eldridge, 424 US 319 ; United States v Parrino, 212 F2d 919 , 348 US 840 ; United States v Russell, 686 F2d 35 ; Michel v United States, 507 F2d 461 ; United States v Yearwood; 863 F2d 6 ; United States v Olvera, 954 F2d 788 .) II. Counsel’s failure to inform defendant, an alien, that his plea of guilty to reckless manslaughter would subject him to deportation, was ineffective assistance of counsel. (McMann v Richardson, 397 US 759 ; People v Baldi, 54 NY2d 137 ; People v Harris, 77 NY2d 434 ; Hill v Lockhart, 474 US 52 ; People v Hobson, 39 NY2d 479 .) III. Defendant’s guilty plea was not knowing and voluntary because he was not informed and did not know that his guilty plea to reckless manslaughter would subject him to deportation. (People v Harris, 61 NY2d 9 ; People v Seaberg, 74 NY2d 1 ; People v Moore, 71 NY2d 1002 ; Boykin v Alabama, 395 US 238 ; McCarthy v United States, 394 US 459 ; North Carolina v Alford, 400 US 25 ; Brady v United States, 397 US 742 ; Mabry v Johnson, 467 US 504 ; Henderson v Morgan, 426 US 637 ; Carnley v Cochran, 369 US 506 .) IV. The preferred, if not exclusive, remedy for a claim of ineffective assistance of counsel is a postconviction proceeding brought pursuant to CPL 440.10. (People v Bachert, 69 NY2d 593 ; People ex rel. Douglas v Vincent, 50 NY2d 901 ; People v Brown, 45 NY2d 852 ; People ex rel. Sedlak v Foster, 299 NY 291 ; People v Cooks, 67 NY 2d 100 .)
Charles J. Hynes, District Attorney of Kings County, Brooklyn (Seth M. Lieberman, Roseann B. MacKechnie and Richard T. Faughnan of counsel), for respondent.
I. Defendant’s guilty plea was voluntary, knowing, and intelligent, even if, at the time of the plea, defendant was unaware of the possibility of deportation, because deportation is a collateral consequence of a criminal conviction. (North Carolina v Alford, 400 US 25 ; Brady v United States, 397 US 742 ; People v Fiumefreddo, 82 NY2d 536 ; People v Moore, 71 NY2d 1002 ; People v Harris, 61 NY2d 9 ; People v Modica, 64 NY2d 828 ; People v Blim, 46 NY2d 934 ; People v Johnson, 205 AD2d 707 , 84 NY2d 868 ;
p. 400
People v Robbins, 118 AD2d 820 ; People v Brown, 80 NY2d 361 .) II. The plea record and the presentence report permitted review of defendant’s claim that the trial court had erred in failing to inform him of the deportation consequences of a conviction of second degree manslaughter. Thus, CPL 440.10 (2) (c) mandated denial of that claim. In any event, that claim is without merit because constitutional due process does not require that a court inform a defendant of collateral consequence of a guilty plea. (People v Cooks, 67 NY2d 100 ; People v Morales, 58 NY2d 1008 ; United States v Osiemi, 980 F2d 344 ; United States v Montoya, 891 F2d 1273 ; United States v Romero-Vilca, 850 F2d 177 ; United States v Campbell, 778 F2d 764 ; United States v Russell, 686 F2d 35 ; Cordero v United States, 533 F2d 723 ; Fruchtman v Kenton, 531 F2d 946 , 429 US 895 ; United States v Santelises, 476 F2d 787 .) III. Assuming that defendant’s counsel failed to advise defendant of the deportation consequences of a guilty plea to second degree manslaughter, that failure would not constitute ineffective assistance of counsel under either the Federal or State Constitution. (Hill v Lockhart, 474 US 52 ; Strickland v Washington, 466 US 668 ; People v Hobot, 84 NY2d 1021 ; People v Flores, 84 NY2d 184 ; People v Baldi, 54 NY2d 137 ; People v Gagliardo, 209 AD2d 872 , 84 NY2d 1011 ; People v Avila, 177 AD2d 426 ; People v Dor, 132 Misc 2d 568 ; United States v Banda, 1 F3d 354 ; Varela v Kaiser, 976 F2d 1357 .) IV. Defendant did not provide sufficient documentary proof to warrant summary vacatur of his judgment of conviction. (People v Winkler, 74 NY2d 704 ; People v Lawson, 191 AD2d 514 .)
Jonathan E. Gradess, Albany, and Stacy Wolf for New York State Defenders Association, amicus curiae.
I. The constitutional right to effective assistance of counsel requires that defense attorneys advise alien clients that deportation may result from entry of a guilty plea. (Gideon v Wainwright, 372 US 335 ; Wong Wing v United States, 163 US 228 ; Hill v Lockhart, 474 US 52 ; Johnson v Zerbst, 304 US 458 ; Strickland v Washington, 466 US 668 ; People v Baldi, 54 NY2d 137 ; Jones v Barnes, 463 US 745 ; People v Satterfield, 66 NY2d 796 ; People v Adams, 53 NY2d 241 ; People v Riley, 70 NY2d 523 .) II. The decision of the Court below violates the guarantees of competent counsel and due process of law derived under the New York State Constitution (People v Avila, 177 AD2d 426 ; People v Boodhoo, 191 AD2d 448 ; United States v Porrino, 212 F2d 919 ; United States v Sambro, 454 F2d 918 ; United States v
p. 401
Santelises, 476 F2d 787 ; Michel v United States, 507 F2d 461 ; United States v Campbell, 778 F2d 764 ; United States v Yearwood, 863 F2d 6 ; People v Johnson, 66 NY2d 398 ; People v Bigelow, 66 NY2d 417 .)
Lucas Guttentag, New York City, Judy Rabinovitz and Arthur Eisenberg for American Civil Liberties Union and others, amici curiae.
I. Appellant was deprived of the effective assistance of counsel in violation of the Sixth Amendment to the Federal Constitution. (Strickland v Washington, 466 US 668 ; Michel v United States, 507 F2d 461 ; United States v Russell, 686 F2d 35 ; United States v Porrino, 212 F2d 919 , 348 US 840 ; United States v Del Rosario, 902 F2d 55 , 498 US 942 ; Flores-Arellano v Immigration & Naturalization Serv., 5 F3d 360 ; Downs-Morgan v United States, 765 F2d 1534 ; Cuyler v Sullivan, 446 US 335 .) II. The New York Constitution provides an independent and adequate basis for holding that defense counsel’s failure to advise a client about the deportation consequences of a plea constitutes ineffective assistance of counsel. (People v Baldi, 54 NY2d 137 ; People v Benn, 68 NY2d 941 ; People v Rivera, 71 NY2d 705 ; People v Roy, 122 AD2d 482 .)
Stern & Elkind (Kenneth H. Stem of the Colorado Bar, admitted pro hac vice, of counsel), Claudia Slovinsky, New York City, and Lory Rosenberg, of the District of Columbia Bar, admitted pro hac vice, for American Immigration Lawyers Association and others, amici curiae.
The failure of defense counsel to adequately investigate the law and advise his client regarding the immigration consequences of his plea constitutes the ineffective assistance of counsel. (Fang Haw Tan v Phalen, 333 US 6 ; Jordan v De George, 341 US 223 ; United States ex rel. Klonis v Davis, 13 F2d 630 ; Downs-Morgan v United States, 765 F2d 1534 ; Government of Virgin Is. v Pamphile, 604 F Supp 753 ; Michel v United States, 507 F2d 461 ; Strickland v Washington, 466 US 668 ; Hill v Lockhart, 474 US 52 ; Coles v Peyton, 389 F2d 224 .)

OPINION OF THE COURT

This appeal raises the question whether Trial Judges or defense counsel are under a duty to warn defendants of the possible deportation consequences before entering a guilty plea. We conclude that there is no such duty, and we therefore affirm.

I

II

p. 402
On September 28, 1990, 19-year-old defendant Rudolph Ford was showing a gun to his girlfriend, Alicia Byron. Believing he had removed the bullets, defendant put the gun to her head and pulled the trigger. The gun discharged, and Byron was killed instantly. Defendant was indicted for manslaughter in the second degree (Penal Law § 125.15 [1]), criminal possession of a weapon in the second degree (Penal Law § 265.03), and criminal possession of a weapon in the third degree (Penal Law § 265.02 [4]). With the advice of counsel, defendant pleaded guilty to manslaughter in the second degree in full satisfaction of the indictment and was sentenced to two to six years in prison. After serving the minimum sentence, he was paroled.

Defendant is a documented legal alien from Jamaica and, following his release, the Immigration and Nationalization Service instituted proceedings for his deportation based upon his conviction of a crime involving moral turpitude (see, 8 USC § 1251 [a] [2] [A] [i]).

Consequently, defendant moved in the Supreme Court for an order changing the manslaughter judgment to a judgment convicting him of criminally negligent homicide. The court granted the motion to the extent of vacating his plea and directing a new trial. It held that "where the facts surrounding the episode to which defendant pleads would not suggest to a reasonable person that the plea involves an admission of grossly immoral activity then, in those rare cases, the defendant should be told that even though what he describes to the court does not involve moral turpitude, he may nevertheless be deported, if he pleads guilty.” (157 Misc 2d, at 671.) The Appellate Division, construing defendant’s motion as one to vacate the plea pursuant to CPL 440.10, reversed Supreme Court’s order and reinstated the judgment of conviction. It held that under the doctrine of collateral consequences the court was not obligated to warn defendant of possible deportation before accepting his plea and that the failure of counsel to advise his client of that possibility before permitting him to plead did not constitute ineffective assistance of counsel (see, People v Ford, 205 AD2d 798 ).

A trial court has the constitutional duty to ensure that a defendant, before pleading guilty, has a full understanding of

p. 403
what the plea connotes and its consequences (People v Harris, 61 NY2d 9 , 19; Boykin v Alabama, 395 US 238 , 244). The court is not required to engage in any particular litany when allocuting the defendant, but due process requires that the record must be clear that "the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant” (North Carolina v Alford, 400 US 25 , 31, citing Boykin v Alabama, 395 US 238 , supra; see also, People v Moissett, 76 NY2d 909 , 910-911). Manifestly, a criminal court is in no position to advise on all the ramifications of a guilty plea personal to a defendant. Accordingly, the courts have drawn a distinction between consequences of which the defendant must be advised, those which are "direct”, and those of which the defendant need not be advised, "collateral consequences” (Fruchtman v Kenton, 531 F2d 946 , 948, cert denied 429 US 895 ; and see, Michel v United States, 507 F2d 461 , 466). A direct consequence is one which has a definite, immediate and largely automatic effect on defendant’s punishment (Cuthrell v Director, Patuxent Inst., 475 F2d 1364 , cert denied 414 US 1005 ). Illustrations of collateral consequences are loss of the right to vote or travel abroad (Meaton v United States, 328 F2d 379 ), loss of civil service employment (United States v Crowley, 529 F2d 1066 , cert denied 425 US 995 ), loss of a driver’s license (Moore v Hinton, 513 F2d 781 ), loss of the right to possess firearms (Penal Law § 400.00 [1] [b]) or an undesirable discharge from the Armed Services (Redwine v Zuckert, 317 F2d 336 ). The failure to warn of such collateral consequences will not warrant vacating a plea because they are peculiar to the individual and generally result from the actions taken by agencies the court does not control (see, United States v Sambro, 454 F2d 918 , 922; Sanchez v United States, 572 F2d 210 , 211).

Deportation is a collateral consequence of conviction because it is a result peculiar to the individual’s personal circumstances and one not within the control of the court system. Therefore, our Appellate Division and the Federal courts have consistently held that the trial court need not, before accepting a plea of guilty, advise a defendant of the possibility of deportation (see, People v Boodhoo, 191 AD2d 448 ; People v Williams, 189 AD2d 910 , Iv denied 81 NY2d 978 ; Fruchtman v Kenton, supra; Cuthrell v Director, Patuxent Inst., supra; United States v Porrino, 212 F2d 919 , 921, cert denied 348 US 840 ). We adopt that rule and conclude that in

III

p. 404
this case the court properly allocuted defendant before taking his plea of guilty to manslaughter in the second degree.[1]

Nor did the failure of counsel to warn defendant of the possibility of deportation constitute ineffective assistance of counsel.

The right to effective assistance of counsel is guaranteed by the Federal and State Constitutions (US Const 6th Amend; NY Const, art I, § 6). The standard for measuring the performance of counsel under the New York Constitution has been stated as follows:

"So 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 NY2d 137 , 147 [emphasis added]).

The phrase "meaningful representation” does not mean "perfect representation” (People v Modica, 64 NY2d 828 , 829). 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 Boodhoo, 191 AD2d 448 , 449, supra; People v Mayes, 133 AD2d 905 , 906).

In the present case, defendant was indicted for manslaughter in the second degree, criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree. Each of these charges constitutes a felony, punishable by a maximum term of 15, 15 and 7 years respectively. Moreover, sentences upon the manslaughter conviction and the second degree possession count could have run consecutively, thereby exposing the defendant to a possible 30-year term of imprisonment (Penal Law § 70.25; and see, People v Robbins, 118 AD2d 820 ). Defendant received meaningful representation when counsel was able to limit his conviction to manslaughter in the second degree in full satisfaction of the indictment and to limit the sentence to two to six years.

* The New York Sentencing Reform Act of 1995 (L 1995, ch 3) now requires trial courts to advise defendants of the possibility of deportation. However, the failure to do so does not aifect the voluntariness of a guilty plea (NY Sentencing Reform Act of 1995 §§ 30, 74 [b]).

p. 405
Nor has defendant stated grounds for relief under the Federal Constitution. The two-part test in Strickland v Washington ( 466 US 668 ) requires a showing that counsel’s performance was deficient and that the deficiency in performance prejudiced defendant. Although the failure to advise a defendant of the possibility of deportation does not constitute ineffective assistance of counsel (see, United States v Del Rosario, 902 F2d 55 , 59, cert denied 498 US 942 ; United States v Campbell, 778 F2d 764 , 768; United States v Gavilan, 761 F2d 226 , 228), some Federal courts have held that affirmative misstatements by defense counsel, may, under certain circumstances (Downs-Morgan v United States, 765 F2d 1534 , 1540-1541; United States v Santelises, 509 F2d 703 , 704; United States v Campbell, 778 F2d 764 , 768-769; cf., People v Ramos, 63 NY2d 640 ). Defendant has not alleged here, however, that counsel incorrectly advised him about the risk of deportation or that counsel’s advice, if any, induced him to plead guilty.

Thus, we conclude that the defendant was not denied his constitutional rights when he pleaded guilty. The court was under no obligation to inform the defendant of any possible collateral consequences of his plea, including the possibility of deportation, nor was defendant denied effective assistance of counsel.

Accordingly, the order of the Appellate Division should be affirmed.

Chief Judge Kaye and Judges Titone, Bellacosa, Smith, Levine and Ciparick concur.

Order affirmed.

Cases cited

Statutes and regulations cited