The People, Appellant,v.Roman Baret, Respondent.BriefN.Y.May 1, 2014rt f To be argued by LABE M. RICHMAN (30 Minutes) I State of ewYork THE PEOPLE OF THE STATE OF NEW YORK, Appellant, - against - ROMAN BARET, Defendant-Respondent. DEFENDANT-RESPONDENT'S BRIEF Labe M. Richman Attorney for Defendant-Respondent 305 Broadway, Suite 100 New York, NY 10007 Tel. (212) 227-1914 Fax (866) 621-0914 Email: Labe@LabeRichman.com TABLE OF CONTENTS TABLE OF AUTHORITIES ....................................... iv PRELIMINARY STATEMENT .................................... 1 QUESTIONS PRESENTED .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 2 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 2 STATEMENT OF FACTS ........................................ 9 ARGUMENT POINT I THIS COURT SHOULD FIND THAT PADILLA IS RETROACTIVE AS A MATTER OF FEDERAL OR STATE LA W, USING ONE OF THE ANALYSES DESCRIBED BELOW, GIVEN THE FUNDAMENTAL UNFAIRNESS OF CATEGORICALLY DENYING REDRESS IN NEW YORK FOR A PLEA OBTAINED IN VIOLATION OF THE CONSTITUTION BETWEEN 1996 AND 2009, WHERE THE DEFENDANT ENTERED THE PLEA UNA WARE THAT IT CARRIED THE PENALTY OF AUTOMATIC DEPORTATION BECAUSE THE ATTORNEY'S ADVICE FAILED TO COMPORT WITH PREV AILING PROFESSIONAL NORMS AS DETERMINED BY THE UNITED STATES SUPREME COURT AND THIS FAILURE AFFECTED THE CONVICTION RESULT AND CONSTITUTIONAL REPRESENTATION COULD HAVE SAVED THE DEFENDANT FROM HORRENDOUS IMMIGRATION CONSEQUENCES ....... 18 A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 18 B. This Court may find Padilla retroactive under Teague by reaching issues that were not addressed in Chaidez. . ............... 22 1. The Language of Teague and the Policies Underlying The Retroactivity Cases Dictate That This Court Should Give These Unique Padilla Claims Retroactive Effect. ............... 22 (a) Strong policy reasons militate in favor of Padilla retroactivity, including that many Padilla defendants find out about the deportation consequence long after they have completed their criminal sentence, most merely wish to re- plead to an equivalent offense that mitigates or eliminates the immigration consequences (not to avoid punishment entirely), and the Strickland standard's "high bar" already accounts for the finality concerns inherent in collateral review .......................................... 23 (b) Teague's language regarding the uniform treatment of similarly situated defendants mandates retroactive application of Padilla and presents another policy and fairness reason for retroactivity under either state or federal law ........................................ , ... 34 C. In New York State, Padilla Should Be Considered a Watershed Rule Under Teague and, Especially Eastman. ............... 36 D. This Court Should Use Its Power Under Danforth to Find that Padilla is an "Old" Rule Under Teague, as did the Supreme Judicial Court of Massachusetts .......................... 46 1. Introduction................................. 46 2. The Massachusetts Supreme Court correctly found that Padilla was an old rule. . . . . . . . . . . . . . . . . . . . . . . . . 47 3. Respondent preserved this issue below ............. 51 E. Under the Pepper Test for Retroactivity, This Court Must Find Padilla Retroactive as a Matter of State Law Because (A) These Mistakes Have a Direct Impact on the Finding of Guilt, (B) These 11 Claims Are Very Different from Other Claims That Are the Subject of Retroactivity Analysis (C) The Strictures of Strickland and the 440 Statute Already Help to Protect the Finality of These Convictions; (D)The Defendants, Even If They Win Their Motion, Have Already Been Punished and Paid Their Debt To Society; (E) Since It Has Been the Law that Violations of Attorney Norms That Have an Impact on the Conviction Result Will Cause a Reversal on Collateral Attack and Attorney Norms Have Been Published, Law Enforcement Cannot Say that They Were Surprised by this Development; (F) Allowing these Convictions to Stand When Defendants Were Not Told the True Stakes Violates Our Sense of Fair Play and Undennines the Public's Confidence in the Fairness of the Criminal Justice System (G) and There Are Ways to Handle Any Attendant Burden on the Criminal Justice System ........ 53 F. This Court Should Find that Counsel Had a Duty Post-AEDPA and IIRIRA to Inform a Defendant That a Plea Rendered Him Mandatorily Deportable as an Aggravated Felon Under State Constitutional Law .................................... 65 POINT II THIS COURT SHOULD AFFIRM THE APPELLATE DIVISION'S REVERSAL AND REMAND FOR A HEARING BECAUSE THE LOWER COURT, INTER ALIA, MISTAKENLY USED A DISCRETIONARY STANDARD AND, IMPORTANTLY, REFUSED TO APPLY PADILLA V. KENTUCKY BECAUSE OF A MISTAKEN BELIEF ABOUT ITS RETROACTIVE APPLICATION AND RESPONDENT HAD A STRONG CLAIM BECAUSE HE WAS NOT TOLD THE CLEAR AND SUCCINCT IMMIGRATION CONSEQUENCES OF HIS CONVICTION - THAT HE WAS CONVICTED OF AN AGGRAVATED FELONY UNDER IMMIGRATION LAW AND THAT HE WOULD BE DEPORTABLE WITH NO DISCRETIONARY RELIEF AND COULD NEVER TRAVEL AND RE-ENTER THE UNITED STATES AND WOULD BE FOREVER BARRED FROM CITIZENSHIP; AND, IT WAS OBVIOUS THAT DEFENDANT WOULD NEVER HAVE TAKEN THE PLEA HAD HE KNOWN THIS CRITICAL INFORMATION BECAUSE HE 111 CATEGORICALLY INDICATED THAT HE WANTED HIS PLEA BACK FOR OTHER REASONS SOON AFTER THE GUILTY PLEA WAS ENTERED AND HIS ENTIRE F AMIL Y WAS HERE AND THERE IS A REASONABLE PROBABILITY THAT HE WOULD HAVE GONE TO TRIAL OR, AT MINIMUM, TAKEN A PLEA WITH THE SAME SENTENCE OR GREATER SENTENCE ON THE LAST COUNT OF THE INDICTMENT WHICH WAS NOT AN AGGRAVATED FELONY UNDER IMMIGRATION LAW REQUIRING PRESUMPTIVELY MANDATORY DEPORTATION. 68 CONCLUSION ................................................ 79 ADDENDUM. ................................................ 80 TABLE OF AUTHORITIES Federal Case Law Aguirre v. INS, 79 F. 3d 315 (2d Cir. 1994) ..................................... 19,26,72 Apprendi v. New Jersey, 530 U.S. 466 (2000).................................. 55 Chaidez v. U.S., 133 S.Ct. 1103 (2013) ............................................ 4,5,21 Chapman v. California, 386 U.D. 18,24 (1967) .............................. 58 Crawford v. Washington, 541 U.S. 36 (2004)................................... 55 Danforth v. Minnesota, 552 U.S. 264 (2008) .................................... 16,51, 54 Gideon v. Wainright, 372 U.S. 335 (1963)........................................ 38 Gonzalez v. U.S., 2013 WL 345501 (2d Cir. 2013) ......................... 76, 78 Halliday v. U.S., 394 U.S. 831, 832-33 (1969)................................. 44 Hill v. Lockhart, 474 U.S. 52,59-60 (A 510-513) (1985)................ 17,48,50 lV us v. Mackey. 401 Us. at 691........................................................ 24 McCarthy v. U.S., 394 U.S. 459 (1969)........................................... 44 Mojica v. Reno, 970 F. Supp. 130, 179(E.D.N.Y. 1997)................ 47,66 Missouri v. Frye, 132 S.Ct. 1407 (2012) ........................................ 44 Ng Fung Ho v. White, 259 U.S. 276,284 (1922)............................ 3,20, 71 Padilla v. Kentucky, 130 S.Ct. 1473(2010) .................................... paSSIm Palko v. Connecticut, 302 U.S. 319, 325 (1937) ........................... 43 Pascual v. Holder, 723 F.3d 156 (2d Cir. 2013) ............................ 19, 72 St. Cyr v. INS, 533 U.S. 321........................................................... 3,20,29, 71 Strickland v. Washington, 466 U.S. 668, 687-88, 694, 696 (1984) ............................................................................... 3, 33,57,61 73, 75, 79 Teague v. Lane, supra, 489,549 U.S. 288, 301, 304, 308-10, 315, 318(1989) ................................................................. 34,35,38,55,56 U.S. v. Couto, 311 F. 3d. 186, 189-191. ....................................... .47, 66, 75, 78, United States v. Michel, 507 F.2d 461,465 (2d Cir. 1976) ......... 61 United States v. Janvier, 793 F.2d 449, 452 (2d Cir. 1986) ........... 61 U.S. v. Grocio, 645 F. 3d 630,2011 WL 2557232(3rd Cir. 2011) ................... .48 U.S. v. Gonzalez, 2013 WL 355501(2d Cir. 2013) ............................................ 76 U.S. v. Vaval, 404 F. 3d. 144,151 (2d Cir. 2005) ....................................... 75, 78 WhOlion v. Bockting, 549 U.S. 420-421. .................................................... 37,42 v Wilson v. McGinnis, No. 03 Civ. 4625, 2004 WL 1534160, N.4(S.D.N.Y. July 8,2004), affd F. 3d. 196(2d Cir. 2005)...................................................... 67 New York State Case Law People v. Austin, 2002 Bx 000415 (Crim. Ct. Bronx 2013)(attached) .................................... 25 People v. Ayrhart, 8 Misc. 3d. 10 14A(County Ct. Niagra, 2005)...... ......... ........ .......... .... ....... 36 People v. Baret, 43 A.D. 3d 648 (15t Dep't 2007), 11 N.Y. 3d 31(2008)............................... 48 People v. Baldi, 54 N.Y. 2d 137 (1981) .................................................................................. 44 People v. Brown, 2010 Misc. Lexis 5029 ................................................................................. 39 People v. Chacko, 2012 Slip. Op 06840 (15tDept. October 11,2012) ....................................... 62 People v. Dejesus, 34 Misc.3d 748 (Sup. Ct. NY Co. 2011) ...................................................... 27 People v. Eastman, 85 N.Y. 2d 265,275-276(supra)(1995) ............................ 16,35,37,51,52,54 People v. Encamation, 6 Misc. 3d. 1027 A (Sup. Ct. NY County, 2005) ........................................... 36 People v. Favor, 82 N.Y. 2d. 254-265(1993) ............................................................................ 40 People v. Ford, 86 N.Y. 2d 397, 402 (1995)................................................................... 46,65 VI People v. Gooden, 34 Misc.3d 1210(A) (Sup. Ct. Bx, 2013) ............................................. 31 People v. Garcia, 2010 N.Y. Misc. Lexis 4076 .................................................................. 48, 73 People v. Harris, 61 N.Y. 2d. 9, 19 (1983) ................................................................................... 35 People v. Hawkins 11 N.Y. 3d 484, 493 (2008) .......................................................................... 51-53 People v. James, 2013 WL 142031 (City Court Middletown, 2013) ........................................ 26 People v. Kabre, 29 Misc. 3d 307, n.3, N.Y. Slip. Op. 20291 (Criminal Ct. N.Y. Co. July 22, 2010) ................................................................................ 15,16,42,51,52 People v. Kuar, 73 A.D. 3d. 1084 (2d Dep't 2010) ........................................................ 25 People v. Lang. 21 N.Y. 2d 354......................................................................................... 43 People v. McDonald, 1 N.Y. 3d.115........................................................................................... 75, 78 People v. Mercado, 32 Misc.3d 1220A (Sup. Ct. Bx Co, 2011) ........................................... 30 People v. Mercedes, 2012 WL 5233578 (Sup. Ct. NY Co. 2012) .......................................... 32 People v. Mitchell. 80, N.Y. 2d 519 (1992)............................................................................ 14,35 Vll People v. Nixon, 21 N.Y. 2d 338 (1967)............................................................................... 45 People v. Nunez, 2010 Slip op 20522,30 Misc. 3d. 55(App Term 2ndDept., December 15, 2010)......................................................................................................... 48 People v. Oouch, __ A.D. 3d_, Slip op 104769(3d Dept. July 12,2012)....................... 48 People v. Ortega, 2010 Misc. Lexis 4682.............................................................................. 39 People v. Paredes, 2010 Misc, Lexis 4639* 9 (Sept 21, 2010)............................................... 48 People v. Pepper, 53 N.Y. 2d 213, 222 (1981) .............................................. 5, 14,32,33,36,55 People v. Picca, supra 2012 WL 2016397 (2d Dept. June 6, 2012) ............................................... 27,62 People v. Prado, supra, 4 N.Y. 3d 725 (2004)...................................... 52, 53 People v. Ramirez, 29 Misc. 3d. 1201 (A) (NY Crim 2010).................................................... 39 People v. Strawbridge. N.Y. A.D. 3d Lexis 4274**(A. 54-55) (2010) ........................................... 14,36 People v. Stults, 2 N.Y. 3d 277, 283-84 .................................................................................. 76 People v. Tirado, 47 A.D. 2d 193, 195(1st Dept. 1975) ............................... 41 Vlll Out of State Cases Commonwealth v. Clarke, 460 Mass. 30, 34 n.7, 949 N.E. 2d 892,897 n.7 (2011)...................................................................................................... 54 Commonwealth v. Sylvain, Sept 13,2013 .............................................. 7,47,48 Colwell v. State, 118 Nev. 807, 59 P. 3d 463 (2003).............................. 54 Cowell v. Leapley, 458 N.W. 2d 514 (S.D. 1990)................................... 54 Dansforth v. State, 761 N.W. 2d 493, 500(Minn. 2009)......................... 54 Florida v. Helnandez, 2012 WL 5869660 (Supreme Court Fla, 2012) .. 25 People v. Soriano, 240 Cal. Rptr. 328, 335-36 (Ct. App. 1987) .................. 61 Rhoades v. State, 149 Idaho 130,233 P. 3d 61(2010).................................. 54 State v. Rojas-Martinez, 73 P. 3d 967, 970(Utah Ct. App. 2003)............. 66 State v. Smart, 202 P. 3d 1130 (Alaska 2009)............................................. 54 Administrative Case Law (Immigration) Matter of Adamiak, 23 I & N Dec. 878 (BIA, 2006).................................. 29 Matter ofL-G-, 171F. 3d 142. (BIA 1995)................................................. 19 Matter of Pickering, 23 I & N Dec. 621 (BIA, 2003) affd on other grounds Pickering Gonzalez, 465 F. 3d 263 (6th Cir. 2006)..................................... 29 Matter of Song, 23 I &N Dec. 173 (BIA 2001 )....... .............................. ...... 29 IX New York State Statutes CPL §216.05(4)................................................................................... 29 CPL §§ 220.(1 )(H) & (I) .................................................................... 25, 26 CPL § 220.60(3) ................................................................................. 16 CPL § 220.50(7) ................................................................................. 60 CPL §265.15(4)................................................................................... 18 CPL §440.10(1)(h) ............................................................................. 4,16,7,52 CPL § 440.10(2), (3), ........................................................................ 58, 59 CPL § 440.30 (4)................................................................................ 61 PL§221.05 ...................................................................................... 12 PL § 220.25(1) & (2) ...................................................................... 41 PL §1101220.03 ................................................................................. 19 PL §1101220.16(1)............................................................................ 26 PL §1101220.16 (12)......................................................................... 26 Federal Statutes 8 U.S.C. § 1101(a)(43)(U)................................................................. 26 8 U.S.C. § 1101(a)(43)(B)................................................................. 19 8 U.S.C. §§ 1101(a)(43)(F), (G), (R), &(S)...................................... 19,27-28 8 U.S.C. § 1101(£)(8).......................................................................... 19 x 8 USC §1229b(d) ............................................................................... 19 8 U.S.C. § 1182 (a)(2)(A)(i)(II) ......................................................... 19 8 U.S.C. § 1227(a)(2)(B)(I)..................................................................... 19 8 U.S.C. § § 1227(a)(2)(A)(iii), 1229b(a)(3), 1229b(a)(3)................... 19 21 U.S.C. § 841........................................................................................ 20 28 U.S.C. § 2254 ......................................................................................... 25 Other Authorities ABA Standards for Criminal Justice, Prosecution Function and Defense Function, 4-5.1(a), p.197 (3d ed. 1993) ............................................................. 74 Berman, Jennifer, PADILLA V. KENTUCKY: OVERCOMING TEAGUE'S "WATERSHED" EXCEPTION TO NON-RETROACTIVITY, 15 U.Pa. 1. Const. 667 (November, 2012) .......................................................................... 40 California Public Defenders Handbook on Immigration (1988) ..................... 74 Fullerton and Kinigstein, "Strategies for Ameliorating the Immigration Consequences of Criminal Convictions: A Guide for Defense Attorneys" 23 AM. CRIM. L. REV. 425 (1986) ...................................................................... 61 "Immigration Consequences of Criminal Conduct" Margaret McManus, The Legal Aid Society of New York, September 26, 1985 ..................................... 61 National Legal Aid and Defendender Assn., Performance Guidelines for Criminal Representation §f6.2 (1995) ................................................................ 74 Kurzban, IMMIGRATION LAW SOURCEBOOK (13th Ed., 2012). Chp. 3. Section 9B, pp. 251-52) ..................................................................................... 29 Xl Pilcher, Susan L, JUSTICE WITHOUT A BLINDFOLD: CRIMINAL PROCEEDINGS AND THE ALIENT DEFENDANT, 50 Ark. L. Rev. 269, 273 (1997) .................................................................................................................. 67 The New York Times: Broken Justice in the Bronx, Editorial Page, NY Times, April 21, 2013; Faltering Courts: Mired in Delays, Glaberson, NY Times, April 13, 2013; In Misdemeanor Cases, Long Waits for Elusive Trials, Glaberson, NY Times, April 30, 2013 .......................... .41 Xli COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Appellant, -against- ROMAN BARET, Defendant-Respondent. PRELIMINARY STATEMENT x x By permission of Associate Justice Robert S. Smith, granted on June 5, 2013, the People appeal from an October 2,2012, order of the Appellate Division, First Department, reversing and vacating a March 3,2011, order of the Supreme Court, Bronx County (Bruce, J.), denying respondent's 440 motion to vacate the judgement of conviction entered on December 20, 2004, (Lorenzo, J.). Respondent had previously pleaded guilty to third degree criminal sale of a controlled substance and was sentenced to two to six years in jail which he served. Defendant has been ordered depOlied and is presently on supervised release from immigration authorities after serving a year in immigration custody. The Department of Homeland Security is only allowing respondent to stay in the country until this 440 litigation is complete. 1 QUESTIONS PRESENTED 1. Whether this Court should find that Padilla is retroactive as a matter of federal or state law, using one of the analyses described in this brief, given the fundamental unfairness of categorically denying redress in New York for a plea obtained in violation of the constitution between 1996 and 2009, where the defendant entered the plea unaware that it canied the penalty of automatic deportation because the attorney's advice failed to comport with prevailing professional norms as determined by the United States Supreme Court and this failure affected the conviction result and constitutional representation could have saved the defendant from horrendous immigration consequences? 2. Whether this court should affirm the Appellate Division's reversal and remand for a hearing because the 440 court, inter alia, mistakenly used a discretionary standard and, importantly, refused to apply Padilla v. Kentucky because of a mistaken belief about its retroactive application and respondent had a strong claim because he was not told the clear and succinct immigration consequences of his conviction - that he was convicted of an aggravated felony under immigration law and that he would be deportable with no discretionary relief and could never travel and re-enter the United States and would be forever baned from citizenship; and, it was obvious that defendant would never have taken the plea had he known this critical information because he categorically indicated that he wanted his plea back for other reasons soon after the guilty plea was entered and his entire family was here and there is a reasonable probability that he would have gone to trial or, at minimum, taken a plea with the same sentence on the last count of the indictment which was not an aggravated felony under immigration law requiring presumptively mandatory deportation? SUMMARY OF ARGUMENT It is fundamentally unfair that after Congress severely tightened immigration law in 1996 in AEDP A and IIRlRA, some noncitizen-defendants appeared in criminal courts in New York City and were taking pleas of guilty 2 without knowing the true stakes of the case - that their convictions, which often entailed incredibly lenient criminal dispositions, were leading to horrendous immigration consequences that involved lifetime bars to green cards, ineligibility for citizenship, and deportation without the chance at discretionary relief. The U.S. Supreme Court, even prior to Padilla v Kentucky, acknowledged how important immigration consequences were. See INS v. St. Cyr, 533 U.S. at 321 ('''[p]reserving the clients' right to remain in the United States may be more important to the client than any potential jail sentence."')(citations omitted); Ng Fung Ho v. White, 259 U.S. 276, 284 (1922)( deportation can result in a loss "of all that makes life worth living"). That is why the Padilla Court found, that after AEDP A and IIRIRA were passed in 1996, these immigration consequences were "integral" and, in many cases, were "the most important part" of the penalty that an immigrant faced when he pleaded guilty. Padilla v. Kentucky, 130 S.Ct. at 1480. New Yorkers would not countenance a system that fails to tell a defendant "the most important part" of the penalty he faces and lures him to a disposition whose leniency is entirely illusory. Recognizing the fundamental unfairness of this fact, the U.S. Supreme Court in Padilla v. Kentucky, 559 U.S. 356 (2010), relied on Strickland v. 3 Washington, 466 U.S. 668 (1984), to categorically find that it was a violation of a defendant's right to counsel if (a) a defendant could show that he was not advised of the horrible consequences of his conviction, (b) that at the time of this plea, it was a violation of attorney standards for his attorney not to know this critical information and (c) this failure had an impact on the conviction result. Of course, to remedy constitutional violations, such as this, our Legislature, through its unique 440 statute, has granted defendants the opportunity to alter convictions which have destroyed they and their family'S lives. See, CPL § 440.10(1 )(h). The Appellate Division in this case, with good reason, found that respondent had made out a prima facie showing of a Padilla violation. It found that it would give Padilla retroactive effect because it was not a new rule but was only an application of Strickland, supra (A510-513). However, it offered no opinion as to the viability of Padilla claims occurring on pleas prior to 1996, (the date of AEDPA and IIRlRA, the statutes whose existence made the Padilla duty necessary) (A512-13). Two months later, in a divided opinion, the U.S. Supreme Court, in Chaidez v. United States, 568 U.S. _,133 S.Ct. 1103 (2013), ruled in a federal criminal prosecution that Padilla was a new rule and that retroactivity 4 analysis should apply. At the same time, Chaidez re-affirmed the existence of the norms on which the Court relied in Padilla, explicitly referencing a 1968 American Bar Association standard that "instructed criminal lawyers to advise their non-citizen clients about the risks of deportation." ld. at 1113, n.15. Chaidez did not address any of the exceptions under Teague or any other arguments that Teague should not apply to Padilla claims. Importantly, Chaidez, specifically limited to federal cases, did not decide the issue in this case - whether New York should give Padilla retroactive effect to give respondent the chance to argue the merits of his Padilla claim. In this brief, we offer a myriad of reasons that this Court should allow Padilla claims arising between 1996 and 2010 to proceed to decision on the merits. New York Courts can reach these incredibly important claims through several different paths: (a) the Court can find Padilla retroactive under Teague by reaching issues that were not addressed in Chaidez, (b) by exercising its state power it can, like the Supreme Court of Massachusetts, interpret Teague differently than the Supreme Court did in Chaidez (and this is essentially what it did in Eastman), (c) for the same reasons, the Court can apply its own retroactivity analysis outside of Teague, using the balancing test of People v. Pepper, 53 N.Y.2d 213,222 (1981); or (d) it can find a New York State Padilla- 5 like constitutional right to immigration advice that would not be subject to Teague at all but would be governed by Pepper. In support of these approaches we emphasize the following points that militate in favor of Padilla retroactivity: (a) retroactivity jurisprudence is designed to keep dangerous criminals from undoing jail sentences after the evidence is stale and almost all successful Padilla claims involve people who have already completed their sentences (or the sentences were minimal anyway), and often they just want to re-plead to a similarly punitive crime that does not carry the same deportation consequence; (b) the Strickland standard's "high bar" already accounts for the finality concerns inherent in collateral review; (c) the typical non-Padilla "new" rule, if applied retroactively on collateral review, could present a threat to very old convictions, while a retroactive application of Padilla will likely have a minimal impact, if any, on convictions obtained prior to the passage of AEDP A and IIRIRA in 1996; and (d) using Teague to bar the Padilla claims of immigrant defendants pertaining to convictions that were final prior to the Padilla decision denies similarly situated defendants the claim that was granted Mr. Padilla, thus violating a critical maxim in Teague. We also argue that there are numerous reasons that this Court should find, like it did with the Cruz rule in People v. Eastman, supra, that Padilla is a 6 watershed rule. Knowledge of the immigration consequences that are, in many cases, the "most impOliant part of the penalty" that an immigrant defendant faces, Padilla v. Kentucky, 559 U.S. at 364, is critical to the defendant's decision as to whether to allow a finding of guilt against him. Additionally, obtaining a trial, especially on minor offenses, is extremely difficult, requiring a sacrifice of time and money; however, the knowledge of immigration consequences will often lead to perseverance until acquittal or alternative pleas that do not destroy one's life. Furthermore, the system often offers extremely lenient dispositions which lure defendants into pleading guilty to minor offenses that destroy their lives; acquittal or alternative dispositions may be eminently available if the defendant and his attorney have the right information about the real stakes of the case. Finally, knowledge of the most important part of the penalty that one faces is a rule that is implicit in our concept of ordered liberty. Thus, Padilla is a bedrock principle, akin to Gideon, which gives immigrant defendants a monumental right to essentially a free immigration lawyer to guide them through the immigration complications of the criminal case. Further, (and this is probably the simplest way to dispose of this appeal), we argue that the Court could also find that Padilla is an "old" rule that applies retroactively to these incredibly impOliant motions, as did the Supreme Judicial 7 Court of Massachusetts in Commonwealth v. Sylvain, and the Appellate Division in the instant case. This issue is fully preserved because we made that argument below and the lower court erred in following Kahre which found erroneously that it could not adopt a New York State retroactivity analysis under Danforth. Additionally, we argue that if the Court chooses to divert from Teague/Eastman formula and to follow the Pepper balancing test it should find that these critical claims of immigrant defendants outweigh the need for finality. Defendants who had no idea what the true stakes of their cases were and who have shown that their lawyers have violated attorney norms and that this substandard representation has impacted on the finding of guilt should receive a remedy because, inter alia, ( a) these mistakes have a direct impact on the finding of guilt, (b) these claims are very different from other claims that are the subject of retroactivity analysis (c) the strictures of Strickland and the 440 statute already help to protect the finality of these convictions; (d) the defendants, even if they win their motion have usually already completed their punishment and paid their debt to society; (e) since it has been the law that violations of attorney norms that have an impact on the conviction result may lead to reversal on collateral review (and attorney norms have been published), 8 law enforcement cannot say that they were surprised by this development; (f) allowing these convictions to stand when defendants were not told the true stakes violates our sense of fair play and undermines the public's confidence in the fairness of the criminal justice system; and, (g) there are ways to handle any attendant burden on the courts. STATEMENT OF FACTS The Bronx County Grand Jury indicted respondent for sales of a narcotic drug occuning on November 13,1994, December 18,1994, January 12,1995, February 14, 1995, March 29, 1995, April 4, 1995, and possession of a narcotic drug on April 7, 1995. The grand jury indicted the defendant for six counts of third degree criminal sale of a controlled substance, eight counts of third degree criminal possession of a controlled substance (intent to sell) and one count of fourth degree criminal possession of a controlled substance (one-eighth ounce of powder containing cocaine) (A2-7). The defendant was not arrested directly after any of these sales. On December 23, 1996, defendant pleaded guilty (A8-25). The defendant was not sworn for his colloquy. His attorney, David Goldstein, entered a plea of guilty to the eleventh count of the indictment with the understanding that respondent would receive two to six years in jail and the co-defendant, who was 9 only charged with one sale, would receive probation (AI 0). Count Eleven charged third degree criminal sale of a controlled substance (A5). The court then indicated that despite the two to six year sentence, it would recommend the shock incarceration program (which only involves a short waiting period injail and then six months of incarceration) (A 10). The court then took the plea from the co-defendant (AII-I8). When that concluded, the court told defendant that he was pleading guilty to third degree criminal sale of a controlled substance. The court then asked if he understood English and the defendant answered "a little bit." The court then instructed the defendant that if he did not understand something he should ask the interpreter to explain it (AI9). First, the court described the charge and asked the defendant if that is "what you did?" (AI9). But the court in this segment inaccurately stated that respondent was charged with acting in concert with his co-defendant in the count to which he was pleading and the court got the time wrong. Counsel corrected the court, (AI9-20) and after a colloquy, the defendant answered "Yes" (A20); but, it was not entirely clear what he was answering. The defendant answered in the affirmative as to whether he knew it was illegal to sell cocaine and that he was selling cocaine (id.). The court advised the defendant of the rights he was giving up: to suppress evidence, to a trial, and to 10 counsel (A 21-22). The defendant was asked if anyone forced him to plead guilty or bribed him and he answered in the negative and he answered in the affirmative that he was pleading of his own free will (A 22-23). The co- defendant, as noted above, was present in the well for this colloquy. Prior to a sentencing, on May 1, 1997, the defendant, with new counsel, Edward Kratt, moved to take back his plea on the grounds that he had been threatened to take his plea to benefit the co-defendant who received probation and was present during both of their pleas. He alleged that his will had been overborne. (A31-32, 88-94). This motion was denied (A99-102). The defendant did not appear for sentencing and a bench warrant was issued for his arrest. Eventually in 2004, he was returned to court for sentencing (A104-111). He submitted documentation showing his full-time work since his plea of guilty and that he had never been re-arrested during that seven year period (A109). Ostensibly because of defendant's good behavior since his alleged misdeeds, the court had no objection to the defendant entering the Shock Incarceration Program (AI 07). The court's denial of defendant's 220.60 motion to withdraw his plea was appealed and the Appellate Division affirmed in a divided opinion. People v. Roman Baret, 43 A.D.3d 648 (1 sl Dept. 2007). The dissenting justice granted 11 leave to the Court of Appeals and this Court affirmed (also with a dissent). People v. Roman Baret, 11 N.Y.3d 31 (2008). In December of 20 1 0, respondent filed a motion, pursuant to CPL § 440. 10 (1)(h), moving to vacate his conviction on the grounds that he was not informed of the horrible immigration consequences of his plea of guilty and that had he known the truth he would not have voluntarily taken the plea of guilty (see, e.g. A 26, 57, ). I He noted that he had been in the United States for many years and, in December of 1996 (the time of the plea), he had his whole family here, which included parents, a child, his wife, and brothers and sisters. He did not really want the plea anyway because he moved to take it back prior to sentencing. Therefore, had the dire immigration consequences been added to the mix, he would have never voluntarily taken a plea to an aggravated felony under immigration law which would make him deportable with no remedy and would give him a lifetime bar to U.S. citizenship (id). At minimum, he would have at least demanded that any plea only be to the last count which would not have been an aggravated felony under immigration law and he would now be able to obtain citizenship. Counsel noted that he could have obtained that plea by agreeing to do more time in jail, cooperating or some other accommodation 1 The entirety of the 440.10 motion is found at pages A26-Al14. 12 to the People. But in no event would he give up his life in the United States without an extraordinary effOli to avoid those consequences. In support of the 440 motion, respondent cited, inter alia, the due process clause and effective assistance of counsel clause of the constitutions of New York State and the United States (A26, 34). Respondent also made numerous and varied arguments that the 440 cOUli should not use retroactivity analysis to deny the motion under Padilla v. Kentucky. For example, he argued that Padilla was not a new rule requiring retroactivity analysis(A46); he argued that courts and prosecutors should have known that this rule was coming as early as 1974, and 1986(A47); he argued that retroactivity should lead to the same result in similarly situated defendants and that defendant's conviction was already final and Padilla's conviction was already final thus the same result should follow (A49-50); he argued that ineffectiveness claims were always made by collateral attack anyway and they should not be barred on retroactivity grounds (A51-52); he argued that the Padilla decision itself said that the decision would not have such a significant effect on past convictions (A47); he argued that retroactivity analysis was inappropriate because all such motions would happen after defendants had finished their appeals and their sentences because they would only find out 13 about the hon-ible consequences when they traveled, or applied for citizenship or a green card, or were subsequently put in deportation proceedings at a much later date (A52); he argued that 440.10 did not have a statute of limitations and, therefore, allowed such motions if they fit within the procedural limitations of that statute (A52); He noted that the Teague-Eastman-Pepper line of cases, which included both New York State and Federal retroactivity analysis involved rationales that did not apply to Padilla type cases because all of those cases involved appellant's use of in the record appeal type issues to undo convictions that were keeping dangerous criminals off the street which were not present in this or other Padilla claims (A52-54); he argued that federal court's use of retroactivity analysis, where respect for state court's judgments are paramount, does not apply to a "New York State COUli ruling" under 440.10 which "has its own procedures and statutory language" (A53) 2; respondent cited numerous cases where New York State Courts had used state retroactivity analysis to bar use of new decision of state law and argued that they were distinguishable from Padilla, such as People v. Mitchell, 80 N.Y.2d 519 (1992), People v. Pepper, 53 N.Y.2d 213 (1981), People v. Strawbridge, 2010 N.Y. App. Div. Lexis 4274 ** 2 Respondent argued that in Williams v. Taylor, a case cited in Kabre, the state court had not used retroactivity analysis to block the claim, it held hearings on the claim, and found that it was a prejudicial error (AS3). 14 (3d Dept.) (A. 54-55); and finally he argued that Padilla was a watershed holding: noting how important immigration consequences were to most immigrants, involving banishment from friends, family, and opportunity, and that these consequences are "incredibly severe" and "change their lives forever" and cannot be compared with the minor penal consequences that attend to many of these convictions and that the failure to advise clients of these honendous consequences violates our sense of fair play and ordered liberty (ASS-56). It should be noted that respondent offered reasons for retroactivity that went to all cases where a Padilla claim might be raised, not just this particular case. The 440 court erroneously denied the motion without a hearing. (A333- 339). Although, as noted above, defendant had presented a slew of equitable and legal reasons that it was critical that the Court give Padilla retroactive effect, the COUli did not deal with or discuss any of them. The Court simply made a blanket ruling that "this court will not apply Padilla retroactively to this claim" (A. 336). However, notably, the Court only cited one retroactivity case to support its position, People v. Kahre, 2010 N.Y. Slip. Op. 20291 (Criminal Ct. N.Y. Co. July 22,2010).3 That case ruled on all of the possible issues regarding retroactivity in a case where the New York State COUlis were 3 The People in their brief to this Court specifically agreed that the lower court entirely relied on Kabre in its 440 decision. Appellant's Brief, p. 7. 15 applying federal constitutional rights under a CPL § 440.10 motion and it addressed one of the issues in this appeal, ruling that Danforth v. Minnesota, 552 U.S. 264 (2008), gave New York courts the power to deal with retroactivity in its own way but that it would not do so under the authority of People v. Eastman, 85 N.Y.2d 265 (1995). People v. Kabre, 29 Misc.3d 307 (Crim. Ct. NY Co. July, 2010), n. 3. 4 Therefore, the lower court, by incorporating Kabre, was essentially ruling that it would not take a divergent and independent view of retroactivity from the federal courts, a power proclaimed by Danforth and acknowledged by the Kabre court. 5 4 The Kahre court specifically ruled: In Danforth v Minnesota (552 US 264, 128 S Ct 1029, 169 LEd 2d 859 [2008]), the Supreme Court held that Teague does not require state courts to follow federal rules of retroactivity in state court collateral proceedings. The New York Court of Appeals adopted the standards set forth in Teague in People v Eastman (85 NY2d at 275-276); Teague therefore governs analysis of retroactive application of Supreme Court decisions on collateral review. This ruling, adopted by the 440 Court (as the People concede at page 7 of their brief), kept the Court from diverting from federal law and, therefore, this Court can and should review it. 5 Although not critical to this appeal, the COUli's decision was erroneous in other respects. The Court first erred when it said that the decision on whether to grant the motion "rests in the sound discretion of the trial court" avoiding the true legal issue which is whether his constitutional rights had been violated. Showing how confused the court was, it cited CPL § 220.60(3), a irrelevant statute (A335). The court then wrongly stated and missed the focus of the motion by noting that a lawyer would render meaningful representation if the plea was advantageous and the record did not cast doubt on counsel's performance (id.) when 440 motions almost always involve allegations which are off-the-record which are attempting to cast doubt on counsel's performance. Further, almost all pleas of guilty offer some advantage to the defendant. That could not be the real standard when a defendant loses his entire life in the United States because of the plea of guilty. 16 Leave was granted to appeal the denial of the 440 motion (A340) and the Appellate Division reversed, finding that Padilla v. Kentucky was not a new rule for retroactivity purposes because it was just an application of the Supreme Court's federal ineffectiveness standard in Strickland v. Washington and it applied Hill v. Lockhart, 474 U.S. 52,59 (1985) (A5IO-513). It remanded the case to the Supreme COUli for a hearing on the motion. This Court, by Justice Robert S. Smith, granted leave to appeal on June 5, 2013 (A514). 17 ARGUMENT POINT I THIS COURT SHOULD FIND THAT PADILLA IS RETROACTIVE AS A MATTER OF FEDERAL OR STATE LAW, USING ONE OF THE ANALYSES DESCRIBED BELOW, GIVEN THE FUNDAMENTAL UNFAIRNESS OF CATEGORICALLY DENYING REDRESS IN NEW YORK FOR A PLEA OBTAINED IN VIOLATION OF THE CONSTITUTION BETWEEN 1996 AND 2009, WHERE THE DEFENDANT ENTERED THE PLEA UNA W ARE THAT IT CARRIED THE PENALTY OF AUTOMATIC DEPORTATION BECAUSE THE ATTORNEY'S ADVICE FAILED TO COMPORT WITH PREVAILING PROFESSIONAL NORMS AS DETERMINED BY THE UNITED STATES SUPREME COURT AND THIS FAILURE AFFECTED THE CONVICTION RESULT AND CONSTITUTIONAL REPRESENTATION COULD HAVE SA VED THE DEFENDANT FROM HORRENDOUS IMMIGRATION CONSEQUENCES. A. Introduction It is fundamentally unfair that after Congress severely tightened immigration law in 1996, some immigrant-defendants appeared in criminal courts in New York City and were taking pleas of guilty without knowing the true stakes of the case - that their convictions, which often entailed incredibly lenient criminal dispositions, were leading to horrendous immigration consequences that led to lifetime bars to green cards, ineligibility for citizenship, and deportation with no chance at discretionary relief. 6 In these 18 particular cases, without they or their lawyers knowing it, defendants were being banished from their family, friends and jobs to countries they had not been to in decades. In many of the cases, these harsh consequences were entirely avoidable, and defense counsel, with the proper information, could craft alternative dispositions which could reach the prosecutor's and the Court's stated penal goals, but would avoid these horrible mandatory results. It is unconscionable that some immigrants were waiving valuable rights and were 6 For example, any cocaine controlled substance offense is a lifetime bar to a green card, (even a B misdemeanor attempt to possess offense under PL § 110/220.03 with a small fine). 8 U.S.C. §§1182(a)(2)(A)(i)(II); 1255(a)(2). If the person has a green card and has been here for less than seven years, it cuts off discretionary relief from removal. S USC §1229b(d). The same is true for a second marijuana violation plea under PL § 221.05 -that is, two non-criminal offenses under New York law triggers deportation for someone who is lawfully present, S U.S.C. § 1227(a)(2)(B)(I), and create a lifetime bar to a green card even for someone who has been here thirty years and is married to a citizen and has several children. 8 U.S.C. § 1182 (a)(2)(A)(i)(II) also id § 1182(h) (no waiver of admissibility available for second or subsequent marijuana possession offense) Any sale or intent to sell controlled substance conviction, even with probation, is an aggravated felony triggering deportation with no discretionary remedy and lifetime bars to citizenship and reentry to the United States after removal. S U.S.C. § 1101(a)(43)(B); see, S USC §§J227(a)(2)(A)(iii), 1229b(a)(3), see, In re L-G-, BIA, 1995 cited in 171 F.3d 142. Aguirre v. INS, 79 F.3d 315 (2d Cir. 1994); Pascual v. Holder, 723 F.3d 156 (2d Cir. 2013). Such offenses are also virtually always deemed "particularly serious crimes" that eliminate all possibility of relief from removal even for those who would be subject to persecution in their country of origin-except for an extremely small segment of individuals who can prove a greater than 50% probability of torture by or with the acquiescence of government actors (which individuals are still ordered removed but given a revocable "deferral" of that removal order during the time that the likelihood of tOliure exists; they may be detained throughout that period). 8 U.S.C. §§ 1 15S(b)(2)(A)(ii),(B)(i); 1231(b)(3)(B); Matter ofT-L-, 23 I&N Dec. 270 (AG 2002); 8 CFR § 120S.16(d)(2), 1208.17(a),(c). 19 not seeking reasonable alternative dispositions because they lacked critical information which could have saved their life in the United States with their loved ones. Many times the penal consequences were incredibly lenient and unfairly lured them to accept dispositions that destroyed their lives. The U.S. Supreme Court, even prior to Padilla, acknowledged how important immigration consequences were. See INS v. St. Cyr, 533 U.S. at 321 ('" [p ] reserving the clients' right to remain in the United States may be more important to the client than any potential jail sentence. ''')( citations omitted); Ng Fung Ho v. White, 259 U.S. 276, 284 (1922)(deportation can result in a loss "of all that makes life worth living"). That is why the Padilla Court found, that after the change in law that occurred in 1996, these immigration consequences were "integral" and, in many cases, "the most important part" of the penalty that an immigrant faced when he pleaded guilty. Padilla v. Kentucky, 130 S.Ct. at 1480. It is obvious that New Yorkers, as a community, cannot countenance a system that fails to tell a defendant "the most important part" of the penalty he faces and lures him to a disposition whose leniency is entirely illusory. The immigrants whose lives have unnecessarily been destroyed because they and their attorneys failed to understand "the most important part" ( Padilla v. Kentucky, 130 S.Ct. at 1480) of the penalty facing the defendant, deserve and 20 desperately need a remedy to undo these catastrophic and tragic results. CPL § 440 gives them that right of redress and this Court should not allow retroactivity rules to bar their reasonable requests for the justice that comes with competent representation. This is especially so when they have already served their punishment and are no longer a danger to society, and in many cases are only seeking to plead to an equivalent offense without the same dire immigration consequences. Also, the Strickland standard only allows Padilla claims to succeed when they meet the two pronged test that his lawyer's lack of knowledge violated attorney norms and the defendant suffered prejudice as a result. We establish below that, contrary to the prosecution's position, Chaidez v. United States, 568 U.S. _, 2013 WL 610201 (2013), does not require that New York Courts ignore the plight of immigrants who have unknowingly been lured to criminal dispositions that appear to be beneficial but instead lead to tragic and avoidable catastrophe. New York Courts can reach these incredibly important claims through several different paths: (a) the Court can find Padilla retroactive under Teague by reaching issues that were not addressed in Chaidez, (b) it can, by exercising its state power like the Supreme Judicial Comi of Massachusetts, interpret Teague differently than the Supreme Court did in Chaidez (and this is 21 essentially what it did in Eastnwn), (c) it can, for the same reasons, apply its own retroactivity analysis outside of Teague which is found in Pepper, or (d) it can find a state constitutional right to immigration advice that would not be subject to Teague but would be governed by Pepper. B. This Court may find Padilla retroactive under Teague by reaching issues that were not addressed in Chaidez. In Chaidez, the Supreme Court, in a federal criminal prosecution, determined that Padilla v. Kentucky, supra, came within the retroactivity analysis of Teague because it was a new rule of constitutional jurisprudence. It did not reach any other issue implicated by retroactivity analysis. 1. The Language of Teague and the Policies Underlying The Retroactivity Cases Dictate That This Court Should Give These Unique Padilla Claims Retroactive Effect. Even if Padilla is a new rule, as Chaidez found, a reading of Teague and other retroactivity cases and an understanding of how Padilla 440 motions really work inevitably leads to not using retroactivity to block defendants who establish that at the time of their plea, their attorney violated standards of competence and that such a violation had an effect on the conviction result. The distinction between the claims blocked in the retroactivity cases and Padilla claims are that (a) retroactivity jurisprudence is designed to keep dangerous criminals from undoing jail sentences after the evidence is stale and 22 almost all successful Padilla claims involve people who have already completed their sentences (or the sentences were minimal anyway), and often they just want to switch the conviction to a similarly punitive penal crime; (b) the new rule in other cases, if retroactive, could undo convictions however old and in Padilla and the Appellate Division decision here, the claim in a case like this will probably not exist prior to April of 1996 regardless of any retroactivity ruling; and (c) that all the retroactivity claims involve trying to raise on-the- record appellate claims after the appeals are over which allows the Court to apply the rule fairly and uniformly to all similarly situated defendants, while applying this same retroactivity rule to defendants raising Padilla claims denies similarly situated defendants the claim that was granted Mr. Padilla (whose conviction was already final like Mr. Baret), thus violating the critical uniformity maxim of Teague. These are all strong legal and policy reasons why this Court should find Padilla retroactive. Ca) Strong policy reasons militate in favor of Padilla retroactivity, including that many Padilla defendants find out about the deportation consequence long after they have completed their criminal sentence, most merely wish to re-plead to an equivalent offense that mitigates or eliminates the immigration consequences,(not to avoid punishment entirely), and the Strickland standard's "high bar" already accounts for the finality concerns inherent in collateral review. In Teague, a defendant, after his appeals had been denied, tried to raise an 23 on-the-record-appeal issue in federal collateral review. Specifically, Teague, while he was serving his sentence, tried to argue on collateral attack, after his conviction was final, that the new Supreme Court cases regarding jury selection should lead to a reversal of his conviction. At the time of his trial and appeals, the jury was selected properly under the law at that time. Application of the new rule, of course, would have led to a reversal when the evidence was stale. This would harm the prosecution, interrupt an incarcerated criminal's sentence, and would thus, threaten the safety of the community. For example, in Mackey, the retroactivity case cited by this Court in Eastman, the Supreme Court stated: No one, not criminal defendants, not the judicial system, not society as a whole is benefitted by a judgment providing a man shall tentatively go to jail today, but tomorrow and every day thereafter his continued incarceration shall be subject to fresh litigation. Mackey, 401 Us., at 691 (Harlan, J., concurring in judgments in part and dissenting in part). The claims coming before New York courts under Padilla are much different. Most of the defendants who desperately need this claim have finished their sentences, or their cases only involved minimal sentences anyway. Most defendants do not discover the horrible truth about their conviction until they are placed in deportation proceedings when they finish 24 their sentence, travel, apply for citizenship or a green card (not realizing that they have already destroyed their chances with their particular plea of guilty and have unknowingly brought themselves to the attention of ICE). See, ~, Florida v. Hernandez, 2012 WL 5869660 (Supreme Court Fla, 2012); People v. Austin, 2002 Bx 000415 (Crim. Ct. Bronx 2013)(attached). For those convicted between 1996 and 2009, the only option open to them is a challenge to the conviction after it is final, and CPL 440.10 fully allows it in cases where the facts are not in the record on appeal. (Of course, Padilla claims always require that facts be added to the record). 7 And, in almost all of those cases, these defendant's sentences have been completed. And, often these defendants are still willing to keep their criminal stigma and are only seeking to switch their convictions to an existing count in their case or an allowable plea offense [see, CPL §220.20(1)(H) & (I)] which does not lead to mandatory deportation. See,~, People v. Austin, 2002 Bx 000415 (Crim. Ct. Bronx 2013)(attached). This occurs in most drug cases where defendants are offered the chance to plead to an attempt at a B felony and are 7 Padilla motions always include facts off-the-record that cannot be raised on appeal because the claim involves private conferences between attomey and client where immigration either was or was not discussed; and the defendant must show that he would not have taken the plea had he been given the COlTect advice, another off-the-record fact. People v. Kuar, 73 A.D.3d 1084 (2d Dept. 2010). 25 given probation. In this regard they often have the option of pleading guilty to PL § 11 0/220.16(1) (possession with intent to sell) or § 110/220.16(12) (possession of a half ounce or more of a narcotic drug). Those lucky enough to plead guilty to subdivision twelve 8 will be able to seek cancellation of removal and citizenship and those pleading guilty to subdivision one will be deported with no chance at discretionary relief. 9 See,~, People v. James, 2013 WL 8 One does not even have to be charged with subdivision 12 to plead guilty to it because under CPL § 220.20(1 )(H) & (1), all drug possession offenses are considered lesser included offenses for purposes of a plea. There is absolutely no excuse for an attorney of an immigrant not to aggressively seek a weight felony plea rather than a sale or an intent to sell plea. See, legal discussion, next footnote. A perfect example of a tragedy when a defendant does not have competent counsel is People v. Baboolall, 40 Misc.3d 1234A (Sup. Ct. NY Co. August 2013). Although not mentioned in Justice Weinberg's opinion, as his attorney I know that the defendant had come to the United States with his four siblings in 1978 when he was one year old. His probationary sentence, without him knowing it, has led to his deportation from his children and family from the only country he has ever known when his attorney could have easily avoided this tragic result with an alternative plea. Because Padilla was not retroactive, there was nothing Justice Weinberg could do. Id. 9 The aggravated felony statute states that any offense involving "illicit trafficking in a controlled substance" is an aggravated felony. 8 U.S.C. § 101(a)(43)(B). This includes any offense that involves intent to sell or sale of controlled substances, which are deemed felony drug trafficking crimes under federal law. Pascual v. Holder, 723 F.3d 156 (2d Cir. 2013); Aguirre v. INS, 79 F.3d 315 (2d Cir. 1994); 21 U.S.C. § 841. . That is so, even when the charge of conviction is an attempt. 8 U.S.C. § 1101(a)(43)(U)(Any attempt of an aggravated felony is an aggravated felony). However, of critical impOliance is the legal fact that state felonies which charge simple possession of a particular weight are not aggravated felonies. Aguirre v. INS, 79 F.3d 315 (2d Cir. 1994) (Second Circuit acknowledges that Board of Immigration Appeals has ruled that state narcotics felonies which do not fit within federal felonies are not aggravated felonies under immigration law and, in spite of Second Circuit ruling to the contrary, will respect BIA decision in immigration cases). Therefore, when Mr. Baret pled guilty in 1996, competent criminal defense attorneys and all immigration attorneys knew that New York 26 142031 (City Court Middletown, 2013); People v. Dejesus, 34 Misc.3d 748 (Sup. Ct. NY Co. 2011); People v. Picca, supra, 2012 WL 2016397 (2d Dept. June 6, 2012) ("had the immigration consequences of defendant's plea been factored into the plea bargaining process, defense counsel may have succeeded in obtaining a plea agreement that would not have borne the consequence of mandatory removal ... "). A similar situation occurs when defendants plead guilty to larceny, burglary, possession of stolen property, bribery, forgery, perjury, obstruction, counterfeiting, vehicle identification number offenses, or crimes of violence and obtain an aggravated felony conviction because they received a one year sentence. A sentence of a year or more raises these crimes to aggravated felonies. See, 8 U.S.C. §§ 1101(a)(43)(F), (G), (R), & (S). A one day reduction in the sentence could make the difference between lifetime banishment and the chance to obtain cancellation of removal and citizenship. Although there is only a trivial penal difference between a 365 or a 364 day sentence, 10 the state felonies that did not involve sale or intent to sell were not aggravated felonies under immigration law. 10 The truth of the matter is that a reduction in the total time served is not even necessary because a defendant in such a situation can plead to two counts and receive less than one-year sentences consecutive to each other and serve more than one year for the offense but not have an aggravated felony (for example, two seven month consecutive sentences). A lawyer who considers the real consequences can save someone's life with their 27 immigration consequences are dramatically different. And, this is particularly unfair for misdemeanors because under immigration law, the state label of the crime is irrelevant. For example a petit larceny offense with a sentence of a year is a larceny with a sentence of a year or more and therefore, this misdemeanor is an aggravated felony under immigration law. 8 U.S.C. § 1101(a)(43)(G). One day less and it's not. The immigrant is not trying to avoid punishment, supervision, or the like, he simply wants the opportunity to revisit the case under 440 to make the changes that any sane attorney would have demanded in the first place had they been competent. An immigrant, who without knowing the horrible consequences, pleads guilty to the wrong count in 2007, or who accepts one day too long on his sentence, needs a remedy to undo this tragic mistake. But he is not trying to get out of jail and he is not trying to avoid his punishment, but he only wants to obtain the result that all those similarly situated immigrant defendants with competent attorneys obtained - avoidance of mandatory deportation after numerous years in the United States. This is the hallmark of competent counsel. See, Padilla v. Kentucky, 130 S.Ct. at 1486 (competent counsel with a family. Giving them the chance to go back and rectifY the problem does not diminish the penal consequences of the case one bit but it can avoid the destruction of someone's life with their family and friends. 28 rudimentary understanding of immigration law can craft a plea bargain that substantially reduces the likelihood of deportation); St. Cyr, 533 U. S., at 323 (2001) ("preserving the possibility of" such discretionary relief from deportation "would have been one of the principal benefits sought by defendants deciding whether to accept a plea offer or instead to proceed to trial"). Another important example in this area are cooperation and drug program pleas. Often defendants who enter into drug diversion programs or who cooperate, plead guilty to greater offenses and the People agree that the convictions will be vacated when the defendant finishes their treatment or cooperation. However, importantly, ICE (counter-intuitively) does not honor these vacaturs and the original convictions count for deportation purposes. 11 In re Pickering, 23 I & N. Dec. 621 (BIA, 2003) rev'd on other grounds, 465 F.3d 263 (6th Cir. 2006); Kurzban, Immigration Law Sourcebook (13 th Ed., 2012), Chapter 3, Section 9B, pp. 251-52. 12 Many attorneys who expect the pleas to be vacated are not careful in what count they plead to, and they may 11 It is for this reason that the Legislature passed CPL § 216.05(4), letting a defendant avoid pleading guilty to get into a drug diversion program when that plea would lead to collateral consequences. This is significant acknowledgment by the Legislature, even prior to Padilla, that collateral consequences are just as important as penal ones. 12 ICE will honor reductions in sentence which take offenses out of the aggravated felony category. Matter a/Song, 23 1& N Dec. 173 (BIA 2001). Vacaturs for legal defects are honored. Matter 0/ Adamiak, 23 I & N Dec. 878 (BIA 2006). 29 inadvertently plead clients to aggravated felonies which were entirely avoidable and will lead to deportation with no remedy even if vacated. See, ~, People v. Mercado, 32 Misc.3d 1220A (Bronx Co. 2011). These successful defendants in cooperation and diversion programs do not want to avoid their punishment or their rehabilitation, they simply want to obtain what a competent lawyer would have obtained for them had they known what the real immigration penalty was. Theses cases are particularly sympathetic because the penal system does not want these people to have a criminal record for these cases and these defendants, without they or their lawyers knowing it, are banished forever from loved ones for convictions they thought were erased. If such an event happened in 2008, would this Court want that defendant's child to be without a father because the established incompetence of his attorney cannot be redressed under Teague. The fact that Padilla is a Strickland case and contains a requirement that one show how counsel's failure had an impact on the outcome also keeps criminals serving long sentences from undoing them. For example, a dangerous and violent second-felony-offender-robbery defendant charged in a series of anned robberies in 2008 who agrees to a definite 10 year sentence to dispose of the cases will not be able to use Padilla to get out of jail early. Obviously, if 30 that person agreed to do 10 years without knowledge of the immigration consequences, they were extremely afraid of the jail result after trial which could be well over 25 years in jail. That person cannot show that his lack of knowledge kept him from reasonable alternative pleas because a 364 day sentence was not "in the cards" in "any way shape or form." And, it would be impossible to show that if he was willing to take 10 years of hard time to avoid 25 or more years in jail that he was also not willing to accept deportation to avoid such hard time. 13 In other words, it is impossible for this person to show that deportation would have changed the plea calculus - that is, he would have subjected himself to probable lifetime incarceration to avoid deportation that would have occurred after trial anyway. The immigrant defendants that have successful Padilla claims are going to be the people who can show that the immigration consequences were so much greater than the penal ones - that is, the person with no record who pleads guilty to possession of a small amount of cocaine, pays his fine, does his treatment readiness program but shockingly finds out that he is barred from a green card for life; the person who pleaded guilty to attempted possession with intent to sell who has been here for 30 years with a green card and could have 13 See, e.g. People v. Gooden, 34 Mise.3d 121O(A) (Sup. Ct. Bronx, 2012). 31 avoided being banished from his family by pleading to Count II which charged a particular weight; the person in a drunken bar fight that did his anger management program and five years probation but should have pleaded to reckless assault to avoid deportation; or people who were not facing a huge amount of time who had excellent suppression motions, or the evidence was weak and they waived valuable rights to contest extremely flawed cases 14 because they did not know that the plea banished them from everything they held dear - their job, their family, their friends, and their American dream. 15 In other words, the People who can win Padilla motions are not the people who these retroactivity rules were really meant to protect us from - criminals who are serving long sentences who want their freedom because of a new principle not available when they were convicted. Another area where Padilla claims differ dramatically from the claims found in other retroactivity cases is that a finding of retroactivity in those situations, is an "all or nothing" occurrence. In other words, if the Court finds retroactivity it will go back forever. For example, in People v. Pepper, 53 N.Y.2d 213,222 (1981), this Court ended the opinion by noting that retroactivity 14 See,~, People v. Mercedes, 2012 WL 5233578 ** (Sup_ Ct. NY Co. 2012). 15 Or, as happened in this case, the defendant showed his willingness to go to trial by moving to take back his plea for other reasons right after the plea and he had a chance to plead guilty to another offense that could have reserved his right to citizenship. 32 would mean that "every defendant to whose case it was relevant, no matter how remote in time and merit, would become its beneficiary." People v. Pepper, 53 N.Y.2d at 222. Once again it is the claim's reliance on Strickland which makes this claim very different. Under the first prong of Strickland, a defendant can only raise the claim ifhe can show that the attorney violated norms in existence at the time of the representation. As Strickland states, a defendant is only deprived of his right to counsel when the attorney fails to provide "reasonably effective assistance," that does not fall below an "objective standard of reasonableness." Strickland, 466 U.S. at 687-88. The Court in Baret offered no opinion as to whether the claim could exist on pleas prior to Congress's passage of AEDP A and IIRlRA in April and September of 1996, respectively (A 512-13). These were the two statutes whose passage the Padilla court used to find the duty expressed in Padilla - that counsel should know the clear immigration consequences of the conviction .. Padilla v. Kentucky, 130 S.Ct. at 1480 ("These changes [passage of the above statutes] confirm our view that, as a matter of federal law, depOliation is an integral part-indeed, sometimes the most important part - of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes."). Therefore, in this case, finding retroactivity will not make 33 the claim go back forever which was a huge concern for the Pepper Court. (b) Teague's language regarding the uniform treatment of similarly situated defendants mandates retroactive application of Padilla and presents another policy and fairness reason for retroactivity under either state or federal law. Further proving that Padilla/Strickland is a different claim from those that are the subject of retroactivity litigation is that it in this case it is impossible to apply the unifonnity value emphasized in Teague. As the Teague Court stated: Retroactivity is properly treated as a threshold question, for, once a new rule is applied to the defendant in the case announcing the rule, evenhanded justice requires that it be applied retroactively to all who are similarly situated. Teague v. Lane, supra, 489 U.S. at 301. The Court re-emphasized the point later in the opinion: The fact that the new rule may constitute a clear break with the past has no bearing on the 'actual inequity that results' when only one of many similarly situated defendants receives the benefit of the new rule. Teague v. Lane, supra, 489 at 315. Of course, application of this important fairness point requires that Padilla should be applied to all those similarly situated defendants like Mr. Baret whose convictions were already final when they made the motion, just 34 like Mr. Padilla. 16 As we noted above, defendants with Padilla claims from before 2009 usually find out about the misfeasance not only after their conviction is over but well after they finish their sentence. A finding of non- retroactivity for this type of claim is particularly unfair for clients who have patiicularly good Padilla motions on dispositions that occurred between 2002 and 2009. Mr. Padilla's plea happened in 2002 and, at minimum, the Court was saying that it was incompetent for an attorney not to know the immigration consequences 2002. It makes no sense that those who took their pleas after that date but before Padilla would not be able to obtain relief when their pleas were well after Mr. Padilla's plea and their attorney was even more incompetent because more time had elapsed since the passage of AEDP A and IIRlRA, the statutes that made immigration law so important ("indeed, the most important part"). Padilla v. Kentucky, 130 S.Ct. at 1480. 17 16 His conviction became final 90 days after his conviction was affirmed by this Court on June 25, 2008. He was only two years away from having Padilla apply without any retroacti vi ty. 17 Additionally, no decision of any kind has used retroactivity analysis to block application of Strickland. Indeed, a review of the retroactivity cases under state and federal law all include situations where the courts, as noted above, are using retroactivity analysis to block the raising of appeal issues after the appeals are over and the conviction has become final not Strickland claims raised for the first time on collateral attack where collateral attack is the only possible way to approach the claim. See, Teague v. Lane, supra, (defendant tries to raise on-the-record Batson/Swain claim on collateral attack after appeal process was concluded); People v. Eastman, 85 N.Y.2d 265 (1995)(defendant raises on-the-record-Cruz claim on collateral attack after appeals process concluded); People v. Mitchell, 80 N.Y.2d 519 (1992) (defendant tries to raise on-the-record-Antomarchi claim after appeal was 35 Therefore, as Justice O'Connor stated in Teague, "evenhanded justice requires that it be applied to all who are similarly situated." Teague v. Lane, supra, 489 U.S. at 301, 304. Therefore, Mr. Baret and all those similarly situated should be treated the same as Mr. Padilla. For this reason, Padilla should be an exception to Teague. C. In New York State, Padilla Should Be Considered a Watershed Rule Under Teague and, Especially Eastman. In Eastman, this Court found the existence of the second exception outlined in Teague, that even if the Court found that a rule was new, it would have retroactive effect if it was a so called watershed rule of criminal procedure. In Eastman, this Court described the exception, stating that the retroactivity bar would not apply where the new rule alters a bedrock procedural element of criminal procedure which implicates the fundamental fairness and accuracy of concluded); People v. Pepper, 53 N.Y.2d 213 (1981)(defendant tries to raise on-the-record- Samuels claim on collateral attack after appeal had concluded); People v. Strawbridge, 2010 N.Y. App. Div. Lexis 4274 ** (3d Dept.)(defendant tries to raise on-the-record-Suarez issue on collateral attack after appeals have been concluded); People v. Ayrhmi, 8 Misc.3d 1014A (County Ct. Niagra, 2005)( defendant tries to raise on-the-record-Crawford claim after appeals had been concluded); People v. Encarnacion, 6 Misc.3d 1027 A (Sup. Ct. NY County, 2005)(same). These cases are nothing like the present case where the issue must be contained in a collateral attack in the first instance and the facts are not on the record and the issue was not raised in an appeal and the issue is generally discovered after a conviction has become final. That is why Padilla filed his motion after his conviction became final and under Teague it should apply to all those similarly situated. Teague, 489 U.S. at 301. 36 the trial. 18 People v. Eastman, 85 N.Y.2d at 275. Therefore, the Eastman court did not look to see whether the new rule was a bedrock procedural element itself but whether it altered a bedrock element of criminal procedure. As this Court said: Cruz unquestionably departs from established precedent, and implicates a bedrock procedural element--the Sixth Amendment right of confrontation. Eastman, supra, 85 N.Y.2d at 276. 19 Therefore, the Court looked to the 18 The Supreme Court in a recent case did not use the word trial but spoke of a "criminal proceeding". It stated the standard: A new rule applies retroactively in a collateral proceeding only if (1) the rule is substantive or (2) the rule is a "'watershed rul[e] of criminal procedure' implicating the fundamental fairness and accuracy of the criminal proceeding." Saffle, supra, at 495,110 S. Ct. 1257, 108 L. Ed. 2d 415 (quoting Teague, supra, at 311). Whorton v Bockting, 549 U.S. at 416. The Court also stated the standard, again using the word "proceeding": In order to qualify as watershed, a new rule must meet two requirements. First, the rule must be necessary to prevent "an "'impermissibly large risk"'" of an inaccurate conviction. Summerlin, supra, at 356, 124 S. Ct. 2519, 159 L. Ed. 2d 442; see also Tyler, 533 Us., at 665, 121 S. Ct. 2478, 150 L. Ed. 2d 632. Second, the rule must "alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding." 1bid. (internal quotation marks omitted; emphasis deleted). We consider each of these requirements in tum. Whorton, supra, 549 U.S. at 418. 19 If this Court were to find that this differs from Teague, such a departure in Eastman is fully allowed under the state court's power to apply retroactivity analysis differently from the Supreme Court. Danforth v. Minnesota, 552 U.S. 264 (2008). Not only did the Eastman 37 procedural element that the new rule altered to see if it was a bedrock principle. In contrast, in Teague, it appears that the Supreme Court looked to the new rule to see if it was a bedrock principle itself. As the Teague Court said: "we conclude that a rule requiring that petit juries be composed of a fair cross section of the community would not be a "bedrock procedural element" that would be retroactively applied. Teague, supra, 489 U.S. at 315. 20 Under either standard, Padilla satisfies as a bedrock principle or it alters a bedrock principle. Of course the bedrock principle in this situation is the landmark decision in Gideon v. Wainright, 372 U.S. 335 (1963), In Gideon, the defendant was given the right to free counsel and now in Padilla, defendants are Court probably set forth a slightly different rule regarding the watershed exception, its ultimate conclusion that the exception applied in Cruz diverted from Supreme Court precedent because Cruz was never found to be retroactive and neither was Crawford. 20 As the Supreme Court has noted: "this requirement cannot be met simply by showing that the new procedural rule is based on a 'bedrock right'. We have frequently held that the Teague bar to retroactivity applies to new rules that are based on 'bedrock' constitutional rights .... Instead, to meet this requirement, the new rule itself must constitute a previously unrecognized bedrock procedural element that is essential to the fairness of a proceeding. In applying this requirement, we again have looked to the example of Gideon and 'we have not hesitated to hold that less sweeping and fundamental rules' do not qualify." (Whorton v Bockting, 549 US at 420- 421.) It is obvious from reading Eastman that this Court did not interpret its retroactivity analysis in this way. However, once again, Danforth gave it the power to create its own rules for applying federal constitutional rights and it appeared to do so in Eastman. 38 given the right to free immigration counsel on their criminal case. See, Padilla, 130 S.Ct. at 1491, 1492, 1487-1490 (Alito, J. concurring). This is a watershed event and is clearly the altering of a bedrock principle if not a bedrock principle itself. To prove this point, one need go no further than Justice Alito's concurrence in Padilla where he called the ruling "a major upheaval in Sixth Amendment law." Padilla v. Kentucky, 130 S.Ct. at 1491 (Alito, J. concurring). At another point he called it a "dramatic expansion" of the duties imposed on counsel under the Sixth Alnendment. Id. at 1492. Considering his analytical support for this point, Alito's description may actually be an understatement. Alito first noted that the majority had appeared to acknowledge that a "thorough understanding of the intricacies of immigration law is not 'within the range of competence demanded of attorneys in criminal cases.'" See ante, at _, 176 L. Ed. 2d, at 295 ("Immigration law can be complex, and it is a legal specialty of its own. Some members of the bar who represent clients facing criminal charges, in either state or federal court or both, may not be well versed in it"). Id. at 1487. Alito then shows how complex immigration law can be and how many factors must be considered in a criminal case, such as aggravated felonies, crimes of moral turpitude, deportation, inadmissibility, remedies from 39 deportation, derivative citizenship, definitions of what is a conviction under immigration law, etc. Id. at 1487-1490. Alito sets forth the "dramatic" depth and breadth of this representation and his analysis is undoubtedly correct, the right to an attorney that knows immigration law is expansive, dramatic, and is a landmark change in Gideon's reach. See, Berman, Jennifer, PADILLA V. KENTUCKY: OVERCOMING TEAGUE'S "WATERSHED" EXCEPTION TO NON-RETROACTIVITY, 15 U. Pa. J. Const. L. 667 (November, 2012).21 Padilla also has a huge effect on the reliability of the truth seeking function of the criminal justice system. Nothing could be more important regarding the detennination of guilt or innocence than whether the defendant allows an entry of guilt against him without a trial. See, Cf. People v. Favor, 82 N.Y.2d 254,265 (1993)(rule requiring defendant's presence at Sandoval hearing is to be applied retroactively because, inter alia, this ruling is pivotal as to whether the defendant will decide to testify at trial which can have an important impact on the outcome). Ifa defendant's decision to testify at a trial is important and is outcome detenninative, then his decision whether to have a trial in the first place is even more monumental. There are numerous defendants who want a trial who give up that right 21 This is an excellent article which traces the history of retroactivity analysis in the U.S. Supreme Court and its application to Padilla. 40 because of the lengthy wait, the numerous days that one would miss from work, legal expenses, the tedium of court visits, or the frustration of the process. These problems with the court process have been documented. 22 Many defendants who might normally give up, would persevere and be exonerated if they knew the horrendous immigration consequences that would ensue. Knowing whether to persevere on a case until one gets a trial is particularly important in drug cases where drugs are often found in an apartment where one lives with other individuals or the drugs are found in a car where the presumption applies and the defendant can be charged even though he was never seen touching the drugs. These cases, which may contain a reasonable doubt as to ones possession of the contraband, cannot be dismissed before trial because of the statutory presumption or the legal fact that one lives in the premises where the drugs were found (though they may belong to someone else). See, PL §§ 220.25(1) & (2); People v. Tirado, 47 A.D.2d 193, 195 (lst 22 As this Court undoubtedly knows, in April of 2013, there was a series of articles in the New York Times about the outrageous delays of trials in the Bronx See, e.g., Broken Justice in the Bronx, Editorial Page, NY Times, April 21, 2013; Faltering Courts: Mired in Delays, Glaberson, NY Times, April 13,2013; In Misdemeanor Cases, Long Waits for Elusive Trials, Glaberson, NY Times, April 30, 2013. These are just a few of the many articles documenting the huge problem. That is not to say that delays are not present in other counties. All cases in NYC counties require numerous adjournments to be ripe for trial. These are the most important Padilla claims because misdemeanors are the cases where the penal consequences are far outweighed by the immigration ones and the failure to disclose the true consequences shocks the conscience. 41 Dept. 1975).23 Knowing the immigration consequences so that one can persevere until trial are also critical in private complainant assault cases where defendants are often the victim of the race to the precinct where the loser of the fight paints the other as the aggressor, and the defendant may have only won the fight while reasonably defending himself. As the articles about the Bronx make clear, a wait for a trial becomes impossible in many of these cases because of economic and time issues; but, defendants would wait for the trial and be exonerated if they knew the true stakes - that the conditional discharge is a "slap on the wrist" but the hidden penalty is the end of your life with your family in this country and that one would be deported to a country with famine, pestilence, deprivation, or violence unless one fights for the justice that the system is too overburdened to dispense painlessly. Clearly, the Padilla rule is necessary to prevent an "impermissibly large risk of an inaccurate conviction" and [is a rule] which alters our understanding of the "bedrock procedural elements essential to the fairness of a proceeding" People v. Kabre quoting Whorton v Bockting, 549 US 23 This scenario can apply to wives of drug dealers who either do not own or control the drugs, are often abused or diagnosed with dependent personality disorder and are unable to leave the apartment and resist passive involvement in drug distribution. One such client was here for 35 years and could have raised a trial defense or pleaded guilty to a possession felony to avoid mandatory deportation and a citizenship bar, but instead, ignorant of the law, pleaded to an attempted sale and received probation without knowing that she was being banished away from her family forever after a lifetime in the United States. 42 at 418. Not only is the system hard and time-consuming to negotiate, but often, the sentences offered are extremely lenient, which lure and encourage pleas of guilty when one does not have the time, money, and dexterity to wait for a trial to establish one's innocence. This is especially so with drug offenses, where defendants are often given fines and conditional discharges which hardly justify missing 10 days from work to wait for a trial. Even serious felony offenses are disposed of with probation. That defendants are lured into these extemely lenient dispositions without knowing the truth -- that their conviction will lead to deportation with no remedy, lifetime bars to a green card or citizenship, violates our sense of fairplay, and "our concept of ordered liberty." Palko v. Connecticutt, 302 U.S. 319,325 (1937)(Cardozo, J.). Further, beyond its affect on the system's determination of guilt, knowledge of the horrible immigration consequences goes to the fundamental fairness of the plea proceeding and the knowing and intelligent nature of the plea and wheth~r the plea represents a rational decision among the various options open to a criminal defendant. People v. Lang, 21 N.Y.2d at 354; People v. Harris, 61 N.Y.2d 9,19 (1983). This is the most important aspect of the criminal justice system. As the Supreme Court ruled: "[P]lea bargaining ... is 43 not some adjunct to the criminal justice system; it is the criminal justice system." Missouri v. Frye, 132 S.Ct. At 1407, quoting Scott and Stuntz, Plea Bargaining as Contract, 101 Yale LJ. 1909, 1912 (1992). One of the reasons that Padilla directly relates to the determination of guilt or innocence is because of the prejudice prong of Strickland/Padilla. A defendant can only take advantage of the claim if he can show that had his attorney been competent, this particular plea of guilty would not have occurred. Therefore, the failure to know critical information must be directly linked to the existence of the finding of guilt which is entered against the defendant. That is why the existence of the prejudice prong is so important to the finding that Padilla has an impact on the accuracy of the finding of guilt in this watershed analysis. This is also the reason that the only plea retroactivity case, Halliday v. United States, 394 U.S. 831, 831, 832-33 (1969), does not change our analysis. In Halliday, the Supreme Court ruled that the automatic reversal rule of McCarthy v. United States, 394 U.S. 459 (1969), for violation of Rule 11, is not retroactive. In McCarthy, the U.S. Supreme Court required federal judges to strictly follow the procedures of Rule 11 and that the plea would be vacated on appeal if the Court failed to abide by its statutory responsibilities under the rule. 44 This was to encourage strict compliance. But the defendant would not have to show that the error in the allocution had any effect on his decision to plead guilty. The defendant could be aware through counsel of every legal fact that the court failed to address under Rule 11, but that would not matter because McCarthy was a per se rule. Indeed, the McCarthy rule was instituted to protect convictions so that cOUlis would create records that would insure that the plea would withstand any further challenge. A defendant's plea of guilty could be entirely voluntary as a result of his knowledge of the system, or his discussions with able counsel and he would still win a reversal from the McCarthy rule. Therefore, that rule does not directly affect whether the defendant knowingly allowed a finding of guilt to be entered against him. 24 Padilla is entirely different - the claim requires that without the incompetence of counsel, the particular finding of guilt would not be entered. That brings it within the ambit of the watershed exception because the claim requires that the incompetence lead to a finding of guilt which would not have occurred otherwise. In summary, for many reasons, the dramatic expansion of Gideon in Padilla 24 Indeed, this Court specifically rejected application of Rule 11 to New York State pleas of guilty. See, People v. Nixon, 21 N.Y.2d 338 (1967). In that case the Court ruled that the allocution was not critical and that the advice of counsel was the important factor. Padilla also places the focus on the impOliance of counsel in advising the defendant competently on the "most important pati of the penalty" he faces. See, Padilla, at 130 S.Ct. at 1480. 45 qualifies as a watershed rule. D. This Court Should Use Its Power Under Danforth to Find that Padilla is an "Old" Rule Under Teague, as did the Supreme Judicial Court of Massachusetts. 1. Introduction Contrary to the holding in Chaidez, many New York Courts and the Massachusetts Supreme Court decided that Padilla was not a new rule for the purposes of retroactivity analysis under Teague. This was because, as the dissenting justices in Chaidez argued forcefully, it is simply a restating of the Strickland rule under different facts and attorney norms. In Padilla, the Supreme Court found that the defendant had established that at the time of his plea of guilty in 2002, attorney norms required that an attorney must advise his client of the immigration consequences of the conviction. Padilla, supra, 130 S.Ct. at 1482-83. All of those norms existed at the time of the plea in 2002, and indeed, many of the published norms existed many years prior to that date. Id. Although New York had a contrary rule in 1995, see, People v. Ford, 86 N.Y.2d 397 (1995), there was no Court of Appeals case which dealt with the issue after AEDP A and IIRIRA were promulgated in 1996. Had this Court known about the horrible consequences that awaited immigrant defendants after AEDP A and IIRIRA, the decision may have been quite different. In 1997, the 46 federal district court made this point. Mojica v. Reno, 970 F. Supp. 130, 179 (E.D.N.Y. 1997) ("The reality here is that section 440(d) [of AEDPA] effects a drastic change in the law relating to the immigration consequences for a lawful permanent resident .... mak[ing] deportation automatic for convictions falling within the enumerated categories. ") And, in 2002, the Second Circuit noted that these laws from 1996 had changed the dynamic considerably and it implied that a Padilla-type ruling would occur under the right facts. Couto, 311 F .3d at 189- 90 ("Given these amendments, an immigrant convicted of an aggravated felony is automatically subject to removal and no one - not the judge, the INS, nor even the United States Attorney General - has any discretion to stop the deportation."). Therefore, not only did the norms which the Supreme Court cited in Padilla exist on and prior to 1996, but the statutes which made the duty a critical part of an immigrant's representation existed prior to this plea in 1996. Padilla, 130 S.Ct. 1481-1483. 2. The Massachusetts Supreme Court correctly found that Padilla was an old rule. The Massachusetts Supreme Court, after Chaidez, refused to follow the majority's reasoning on the new rule issue and it followed the dissent in Chaidez, finding that the Supreme Court had been too expansive in including too many decisions in the new rule category. Commonwealth v. Sylvain, Sept 47 13,2013. As our discussion throughout this brief makes clear, Padilla is nothing more than an application of the Strickland standard - that is, did the attorney's conduct fall below an objective standard of reasonableness and did that conduct effect the outcome of the case. That is classic Strickland. Numerous courts have made this same finding, consistent with the Massachusetts Supreme Court. People v. Baret, 2012 NY App. Div. LEXIS 6512, NY Slip Op 6550 Iv granted, _ N.Y. 3d _, (June 2013); see, People v. Nunez, 2010 Slip Op 20522 (App Term, 2nd Dept., December 15,2010); People v. Oouch, _ A.D.3d _, Slip op 104769 (3d Dept. July 12,2012); People v. Paredes, 2010 N.Y. Misc. LEXIS 4639 *9 (Sept. 21, 2010); see, United States v. Orocio, 645 F.3d 630,2011 WL 2557232 (3d Cir. 2011); People v. Garcia, 2010 N.Y. Misc. LEXIS 4076. The majority's decision in Chaidez should not be followed by this Court. Justice Kagan, in Chaidez, opined that Padilla was a new rule because the Court had never applied Strickland to collateral consequences. However, to determine that collateral consequences should be considered by an attorney, the COUli looked at the norms of conduct which would necessarily be part of a Strickland analysis: do standards of attorney conduct require that the attorney investigate and advise about immigration consequences? And, as logic and the published 48 sources bear out, the answer is clearly in the affinnative. Therefore, in spite of the Supreme Court's ruling, there is ample reason to say that Padilla was an application of Strickland because the holding was directly derived from an application of the Strickland standard. It appears that a Court could be on solid ground if it ruled that Padilla was simply an application of Strickland to a new issue, new circumstance, new set of facts, or new set of concerns, not covered in other decisions. Either way, even if the issue is collateral to the criminal case, there is no violation of rights if attorney standards of conduct have not been violated. It is the standards of conduct which are primary, not whether the issue is collateral or direct. The Chaidez Court also ruled that Hill v. Lockhart, 474 U.S. 52 (1985), was not a prior case where Strickland was applied to collateral consequences (parole eligibility) because in that case they had decided the case on the prejudice prong. However, the prejudice prong is a critical aspect of the two- pronged Strickland formula. It made no sense to say that they had not applied Strickland. And, indeed, in Hill the Supreme Court had issued an impOliant ruling on collateral consequences, because they told the lower courts that in such cases they should focus on whether the petitioner alleged "special circumstances that might support the conclusion that he placed particular 49 emphasis on his parole eligibility [the collateral consequence] in deciding whether or not to plead guilty." Hill v. Lockhart, 474 U.S. at 59-60. This could be very important in other collateral consequence cases such as immigration ones - that is, did the defendant prove that immigration consequences were of special concern to him. Although we respect the Supreme Court's conclusion in Chaidez, it was a very murky issue that could have gone either way, (depending on the result the Court wished to reach). The Massachusetts Supreme Court's contrary decision proves that point. Furthermore, The U.S. Supreme Court, when considering the application of retroactivity in a federal criminal case, can be isolated from the concerns of immigrant defendants in crowded, backlogged, rapid-paced, New York comis. The serious concerns raised about immigrant defendants in the New York criminal justice system are not as pressing in federal cases, where the evidence is stronger, the cases almost never involve misdemeanors with minor sentences, there are not many alternative plea options, 25 the pleas involve half-hour discussions between the defendant and the Court about the rights and consequences and the defendants, prior to the plea, read lengthy plea agreements that promote further discussion of consequences. New York Courts 25 For example, all controlled substance felonies involve trafficking under immigration law. 50 are quite different where pleas occur in rapid-paced calendar parts, where the penal consequences are often very minor, and the defendant has numerous plea options if the attorney has the right information. The situation in federal court could not be more different. Therefore, it makes perfect sense for New York courts to take a different approach, as Massachusetts did. Such a decision would be the easiest way to give Padilla retroactive effect. 3. Respondent preserved this issue below. The People have argued that any argument from respondent that this Court depart from Chaidez is not preserved because we did not mention Danforth v. Minnesota, 552 U.S. 264 (2008) in our brief. However, the 440 Court did not give a retroactivity analysis in its opinion and, as Appellant admitted in his brief, it simply cited People v. Kabre, 29 Misc.3d 307, n. 3, 2010 N.Y. Slip. Op. 20291 (Criminal Ct. N.Y. Co. July 22,2010) to support its conclusory finding of non-retroactivity (A336). And, in Kahre, importantly, the Court had mentioned Danforth and its holding that New York could enteliain its own retroactivity analysis, but the Kahre court ruled that it could not do so because Eastman, 85 N.Y.2d 265 (1995), had adopted Teague. In Danforth v Minnesota (552 US 264, 128 S Ct 1029, 169 LEd 2d 859 [2008]), the Supreme Court held that Teague does not require state courts to follow federal rules of retroactivity in state court collateral proceedings. The New York Court of Appeals adopted 51 the standards set forth in Teague in People v Eastman (85 NY2d at 275-276); Teague therefore governs analysis of retroactive application of Supreme Court decisions on collateral review. Kahre, supra, 29 Misc.3d 307 (Crim. Ct. NY Co. July, 2010), n. 3. Therefore, by only citing Kahre, the 440 court ruled on the Danforth issue after respondent moved to take back the plea (and, as noted below, specifically raised the new rule issue). Accordingly, the matter is preserved. People v. Hawkins, 11 N.Y.3d 484,493 (2008); People v. Prado, 4 N.Y.3d 725 (2004). It would be different if the 440 court had made a specific ruling about retroactivity. But it made a blanket ruling on retroactivity without any notice as to what part of the complicated formula it was ruling upon. It simply cited Kahre. Therefore, we can only surmise that it agreed with Kabre's finding on the Danforth issue which we quote above. Further, respondent below, at length, made the exact same argument we make here, that the Court should rule that Padilla is not a new rule and that it is just a restatement of Strickland. The court below never addressed that specifically and did not rely on any federal case on this issue. We cited the New York State constitution in our motion and we cited CPL § 440.10(1 )(h) which includes both the New York State and Federal constitutions and is a state statute. We could not ask the Court to divert from Chaidez and the Court could 52 not divert from Chaidez because Chaidez did not exist yet. Considering that fact, the issue was sufficiently preserved as a matter of law since we asked the Court to find that Padilla was just a restatement of Strickland, we cited the state constitution and state statutes that control the disposition of the claim, we cited Kabre which included the Danforth issue and the Court cited only that one case which made a finding on the Danforth issue, thus applying that ruling to this case. Further, considering the paucity of the 440 court's analysis, any further discussion would have been futile. The issue is preserved. People v. Hawkins, 11 N.Y.3d 484, 493 (2008); People v. Prado, 4 N.Y.3d 725 (2004). 26 E. Under the Pepper Test for Retroactivity, This Court Must Find Padilla Retroactive as a Matter of State Law Because (A) These Mistakes Have a Direct Impact on the Finding of Guilt, (B) These Claims Are Very Different from Other Claims That Are the Subject of Retroactivity Analysis (C) The Strictures of Strickland and the 440 Statute Already Help to Protect the Finality of These Convictions; (D) The Defendants, Even If They Win Their Motion, Have Already Been Punished and Paid Their Debt To Society; (E) Since It Has Been the Law that Violations of Attorney Norms That Have an Impact on the Conviction Result Will Result in a Reversal on Collateral Attack and Attorney Norms Have Been Published, Law Enforcement Cannot Say that They Were Surprised by this Development; (F) Allowing these Convictions to Stand When Defendants Were Not Told the True Stakes Violates Our Sense of Fair Play and Undermines the Public's Confidence in the Fairness of the 26 At minimum, the failure to raise the Danforth issue in the 440 court was ineffective assistance of counsel under the state and federal constitution. See, People v. Prado, supra, 4 N.Y.3d 725 (2004). This Court should reach all issues relevant to the important retroactivity of this critical claim. 53 Criminal Justice System (G) and There Are Ways to Handle Any Attendant Burden on the Criminal Justice System. As noted above, Danforth v. Minnesota, 552 U.S. 264 (2008), held that Teague does not control the authority of state courts to give broader retroactive effect to "new" federal constitutional rules in the context of state criminal cases on collateral review. Some states have expressly rejected Teague in favor of a broader retroactivity test. See State v. Smart, 202 P.3d 1130 (Alaska 2009); Cowell v. Leapley, 458 N.W.2d 514 (S.D. 1990).27 Although in People v. Eastman, 85 N.Y.2d 265 (1995) the Court of Appeals applied Teague to New York state convictions, Eastman was decided before Danforth v. Minnesota, 552 U.S. 264 (2008), and contains language that indicates that the Eastman Court felt compelled to apply Teague and did not realize that it had the right to apply its own standards. As regards retrospective application of other new decisional law, New York courts have indeed applied a more fluid set of factors which take the State's particular challenges into 27 As discussed above, other state courts have adopted Teague in principle but not the narrow federal interpretation of those principles. See Danforth v. State, 761 N.W.2d 493,500 (Minn. 2009) (adopting Teague but declining to adopt the federal definition of a "watershed rule" in favor of a "fundamental fairness" inquiry); Rhoades v. State, 149 Idaho 130,233 P.3d 61 (2010); Colwell v. State, 118 Nev. 807, 59 P.3d 463 (2003). In other words, the state can interpret Teague in its own way, and find, for example, as Justice Sotomayor did in her dissent, that Padilla is not a new rule. 54 account. People v. Pepper, 53 N.Y.2d 213 (1981).28 This Court could follow the reasoning of the state courts that, under Danforth, have refused to apply Teague in favor of broader retroactivity principles, like Pepper, supra. Teague's limitation on the retroactive application of new constitutional rules was informed by concerns of comity, finality, and fairness to state courts attempting to resolve federal questions. See Teague, 489 U.S. at 308-10.29 Of these three, only finality is at issue in state 28 Those factors are (a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards. Pepper, supra, 53 N.Y.2d at 220. 29 It should also be noted that Strickland cases in state collateral review do not raise the Teague finality concern of a state court judge faithfully applying the law at the time only to be overturned by a federal court applying a new rule. In the context of federal habeas, the petitioner is getting a second bite of the collateral review apple, because a federal court is reviewing a state court denial of an ineffectiveness claim. But state collateral review is the defendant's first bite of the apple, and due to the prohibitive substantive and procedural limitations on federal habeas claims, often his only bite ofthe apple. (For instance, there is a one year time limit after a state conviction is final to file a federal habeas claim. See 28 U.S.C. § 2244(d)(1). For further substantive and procedural limitations on the availability of federal habeas, see 28 U.S.C. § 2254). Thus, in state cases raising Strickland claims, with the rare exception of an ineffectiveness claim that can be fully litigated on the record evidence and thus raised on direct appeal, no judge has yet looked at the ineffectiveness issue and considered the relevant norms. This distinguishes Strickland claims from nonretroactivity in the context of a claim brought subsequent to, for example, Crc[l;vjord v. Washington, 541 U.S. 36 (2004), where the trial judge had admitted hearsay believing that it was admissible under the 6th Amendment, or a claim brought subsequent to Apprendi v. New Jersey, 530 U.S. 466 (2000), where the judge had believed that he had the ability under the Constitution to rely on factual findings in the imposition of a sentence, without a jury detennination. Therefore, the Teague concern about fairness to the trial judge who has faithfully applied existing law does not apply to a Strickland/Padilla claim raised for the first time in a state collateral review petition. Of course, 440 allows it. 55 court collateral review of a state criminal proceeding. See id. at 308. We understand that this Court should strike a balance between the public's and the system's need for the finality of convictions and the defendant's need for a remedy for constitutional violations that destroy his life and, as the below analysis establishes, this balancing weighs heavily in favor of not using Teague to procedurally bar legitimate Padilla claims that are properly raised by CPL § 440. In short, Teague should not be used to bar Padilla motions because (a) as shown above, a violation of this claim can have a direct impact on the finding of guilt (b) this claim is starkly different from other federal claims blocked by Teague or state claims blocked by Pepper, (c) the finality concerns are adequately addressed by the strictures of the Strickland fonnula itself and the profound procedural requirements of the 440 statute, (d) the criminal justice system could not have been surprised by the holding of Padilla because it is based on the violation of established professional norms that have existed for decades and common sense (e) the public's interest in punishment is protected because these claims arise after the sentences have been served and in many cases the defendants only wish to switch the conviction to another equally serious offense, and (f) allowing defendants to plead guilty to offenses that in 56 many cases involve very minor penal consequences, when the true undisclosed consequences include lifetime bars to green cards, deportation with no remedy, and banishment from everything that a person holds dear, violates our sense of fair play and undermines our respect for the fairness of the criminal justice system. Not only are any burdens on the criminal justice system justified by these numerous factors, but the system can take measures to streamline the Padilla motion practice to expeditiously deal with these claims. First, earlier in this argument we have shown how counsel's failure to consider or advise the defendant of the "most important part of the penalty" that he faces has an impact on the finding of guilt by plea of guilty. See, discussion, supra, at pages 36-46. Second, we have shown that these claims are very different from the claims typically the subject of retroactivity analysis. See, discussion, supra, at 22-36. Third, the deferential standard atiiculated in Strickland is designed purposefully to account for the finality concerns present in collateral review proceedings. The Strickland Court recognized that final judgments carry a "strong presumption of reliability." Strickland, 466 U.S. 668, 696 (1984). Thus, the first prong of Strickland, the performance prong, requires a "highly deferential" assessment of the attorney's performance. Id. at 689. Furthennore, 57 the requirement that the defendant demonstrate prejudice flowing from the attorney's error distinguishes Strickland violations from other constitutional violations, where the prosecution must show that the error was harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18,24 (1967). And the prejudice burden is quite demanding - the defendant must show that there is a reasonable probability that the outcome of the proceeding would have been different absent the error. See id. at 694. As the Padilla Court noted, "[s]urmounting Strickland's high bar is never an easy task." Padilla, 559 U.S. at _, 130 S.Ct. at 1485. Thus, the finality concerns present in state collateral review proceedings are substantially addressed by the burden placed on the defendant to prevail on an ineffective assistance of counsel claim. Even more important, these finality concerns are addressed in the 440 statute itself. The Legislature has severely limited the right to collateral review in the CPL 440 statute. For example, a 440 court must deny a 440 motion if the claim is already being raised on appeal, was already decided on appeal, and could have been raised on appeal and was unjustifiedly not raised on appeal. CPL §440.10(2). 30 Or the 440 Court has the discretion to deny the motion if the 30 This statute would have barred the claim in Eastman except that defendant was allowed to avoid this bar because the Court ruled it was retroactive. CPL 440.1 0(2)(a). Since this statutory only applies to appeal issues, it may be that retroactivity under Teague is not a bar when the issue is properly brought by 440, i.e., it raises not appellate claims. 58 defendant failed to adequately make a record in the trial court to put the matter in the record for an appeal. CPL §440.10(3). 31 Therefore, by strictly precluding relief in so many instances, the 440 statute itself has addressed these finality concerns. As a side note, although, as noted above, §440 gives the Court numerous avenues to avoid considering the defendant's constitutional claim, see, e.g., CPL §§ 440.10(2) & (3); 440.30(4), it does not give the Court the ability to avoid addressing the claim on retroactivity grounds when the strictures of 440 have been satisfied. And, of course, none of the retroactivity cases where claims have been blocked have included such 440 motions where Strickland-based, off-the- record, non-appeal-type issues have been raised. The mandate of §440 is another reason to not use Teague to avoid the vindication of these critical rights. See, footnote 30. Fourth, Strickland claims rely upon the evolution of professional norms, unlike Crawford (interpreting Confrontation Clause to require cross- examination of testimonial statements) and Apprendi (interpreting the Due 31 The 440 Court can also summarily deny the motion under CPL § 440.30 if (a) there is no legal basis for the motion, (b) it is not supported by sworn allegations of fact, (c) the claim is controverted by unquestionable documentary proof or a court record or document; and, (d) the sworn allegation is only supplied by the defendant and "there is no reasonable possibility that such allegation is true." CPL § 440.30(4). 59 Process clause to require that any fact that increases the penalty for a crime beyond the prescribed statutory maximum ... must be submitted to a jury and proved beyond a reasonable doubt), or Antomarchi or Batson which announced dramatic, fundamental shifts in constitutional or statutory interpretation which only apply on appeal. Inherent in the legal standard that applies to Strickland/Padilla claims is a retrospective look at the norms that existed when the defense attorney provided the ineffective assistance. Thus, when the U.S. Supreme Court decided Padilla in 2010, it was assessing the professional norms that existed at the time that Jose Padilla entered his guilty plea in 2002. 32 As noted above, it would be fundamentally unfair to deny redress for a Sixth Amendment violation to a petitioner who established that the norms at the time of his change of plea required that the defense attorney provide deportation advice. There was also a state statute which required that the Court at least tell the defendant about the risk of deportation. CPL § 220.50(7). And, even without this statute and the established professional norms published for everyone to see, it should not have taken any clairvoyance to know that it was a violation of someone' s rights for their attorney to fail to tell them that the 100 dollar fine he was accepting on a B misdemeanor attempted possession of a 32As the Supreme Court decision in Padilla stated at length, for many years there were numerous published standards that established that attorneys were required to pay close attention to immigration consequences. Padilla, supra, 130 S.Ct. at 1482-83. 60 controlled substance plea would bar him from a green card for life and, that even though he had married a U.S. citizen and lived hear for 15 years, he was subject to deportation with no real remedy and would be banished from his kids, his wife and everything that really mattered to him. It cannot be argued that a reversal for a violation of establish norms is a surprise to the criminal justice system. 33 Everyone has known since Strickland was decided in 1984 that a violation of attorney norms that impacted on the result would undo convictions. Strickland, 466 U.S. 668 at 687-88, 694. 34 Fifth, this Court should not use Teague to disallow 440 motions in this situation because Padilla-type cases usually involve defendants who have 33 Whether law enforcement was caught by surprise by a "new" decision is a factor in whether to apply it retroactively under New York common law. People v. Pepper, 53 N.Y.2d 213 (1981). 34 Although the Supreme Court primarily cited to nonTIS existing from 1990 onward, these nonns, as we noted in an earlier section of this brief, have existed well prior to that. See, United States v. Michel, 507 F.2d 461, 465 (2d Cir. 1976)("Where his client is an immigrant, counsel and not the court has the obligation of advising him of his particular position as a consequence of the plea."); United States v. Janvier, 793 F.2d 449,452 (2d Cir. 1986)(immigration issues fall within the right to counsel at sentencing where a judicial recommendation against depOliation was available). People v. Soriano, 240 Cal. Rptr. 328, 335-36 (Ct. App. 1987); See, ABA Standards, 14-3.2(b) (1980); Fullerton and Kinigstein, "Strategies for Ameliorating the Immigration Consequences of Criminal Convictions: A Guide for Defense Attorneys" 23 AM. CRIM. L. REV. 425 (1986); There were also private intra agency memoranda which required that attorneys consider immigration consequences in their representation. "Immigration Consequences of Criminal Conduct" Margaret McManus, The Legal Aid Society of New York, September 26, 1985; California Public Defenders Handbook on Immigration (1988). 61 already served their sentences, and the finality concern is not as great because, at minimum, the penal consequence, that is, the punishment, has been imposed, whether or not the conviction is vacated. And, in a large number of these cases, the defendants are only seeking to change the conviction, which means that ultimately, at the end of the day, the stigma the system wants the person to suffer will probably still exist. People v. Picca, supra, 2012 WL 2016397 (2d Dept. June 6, 2012) ("had the immigration consequences of defendant's plea been factored into the plea bargaining process, defense counsel may have succeeded in obtaining a plea agreement that would not have borne the consequence of mandatory removal ... "); People v. Chacko, 2012 Slip. Op 06840 (1 8t Dept. October 11,20 12)(same); see, Padilla v. Kentucky, 130 S.Ct. at 1486. Sixth, as argued earlier in our Teague watershed argument, the failure to tell a defendant about these unbelievingly important consequences that can destroy everything that a person holds dear almost constitutes trickery when the penal consequences are particularly lenient. It is unquestionable that the need for the immigrant to have a remedy for this violation of attorney norms outweighs the public's need to have a conviction upheld when the sentence has already been served by the defendant and in many cases he only wishes to 62 switch the conviction. Allowing the remedy promotes justice and respect for the criminal justice system. Finally, even though these defendants raising Padilla claims have usually served their sentences, their motions to vacate the conviction do place a burden on the Courts to decide whether the Strickland standard has been met in any particular case. However, the burden may not be as great as many prosecutors have described. First, once the Court grants retroactivity, district attorneys offices will be more willing to acknowledge the claims in deserving cases and the settlements and switching of pleas in appropriate cases will happen in a expeditious and streamlined way without placing a burden on the Court. Now, with the retroactivity issue up in the air, prosecutors are opposing Padilla motions because, however, meritorious, District Attorneys know that they have a chance with the retroactivity issue and they oppose the motion on other issues since they are filing papers anyway. Moreover, the truth of the matter is that, after 1996, New York defender offices, as well as others nationwide, reacted to AEDP A and IIRIRA and they became more sensitive to immigration issues, in some cases, hiring immigration lawyers to advise their lawyers and clients. See, Documents Lodged with the u.S. Supreme Court, for the Amicus Brief of the National Association of 63 Criminal Defense Lawyers, et. als., INS v. St. Cyr, No. 00-767. The Legal Aid Society of New York hired immigration lawyers to advise lawyers of the Criminal Defense Division starting in the 1990s. Manny Vargas first published his treatise on representing immigrant defendants in New York in 1998. See, Most recent edition, Representing Immigrant Defendants in New York (Immigrant Defense Project, 5th ed., 2011). Therefore, many immigrants were properly represented and not only obtained the best possible immigration result, but were told the horrible consequences of their proposed plea. Of course, there are defendants, who were not ably represented. But those are a minority who, as described above, desperately need the 440 remedy. The decisions that have been issued so far in the Padilla area have not complained of the burden on the administration of justice and, any increased caseload can be accommodated by educating judges on these "crimmigration" issues and possibly setting up special pm1s to create judicial expertise in this area. This has been done with drug parts and recently has been proposed by the Chief Judge on the sex trafficking problem. This is not a close balancing case. As we have shown, the factors which supp0l1 the vindication of these critical Padilla rights far outweigh the need for finality. New York COUl1s should not, under Teague, destroy the promise that § 64 440 sets out for immigrants convicted without they or their lawyers knowing the true stakes. * * * The People have also made a preservation argument on this point. Our answer is the same as the preceding point. The 440 court, by adopting Kabre, made a ruling that Danforth did not apply (when it should). Further, as we lay out in our statement of facts, defendant made, in essence, every argument he makes here. See, Respondent's Brief, pp. 13-15. F. This Court Should Find that Counsel Had a Duty Post-AEDPA and IIRIRA to Infonn a Defendant That a Plea Rendered Him Mandatorily Deportable as an Aggravated Felon Under State Constitutional Law. The Court can also find a Padilla-type duty under state constitutional law. As this Court may know, in 1995, the Court of Appeals refused to require attorneys in New York to advise defendants of the immigration consequences of a conviction. People v. Ford, 86 N.Y.2d 397, 402 (1995). The 1995 Ford opinion held that "the possibility of deportation" was a collateral consequence of a defendant's conviction because it was not automatic, and because "it is a result peculiar to the individual's personal circumstances and one not within the control of the court system." Id. This opinion became obsolete the next year because of huge changes in immigration law in AEDPA and IIRIRA. 65 Deportation was no longer a mere "possibility" dependent on an individual's "personal circumstances," nor is it dependent on an agency outside of the court's control. It was and is contingent on the law, the province of a lawyer giving meaningful representation. Id. Pursuant to the 1996 amendments to the immigration law, deportation because, in most cases, a certain and automatic consequence of an immigrant's conviction for an aggravated felony. See Couto, 311 F.3d at 189-90 ("Given these amendments, an immigrant convicted of an aggravated felony is automatically subject to removal and no one - not the judge, the INS, nor even the United States Attorney General - has any discretion to stop the deportation."); Mojica v. Reno, 970 F. Supp. 130, 179 (E.D.N.Y. 1997) (liThe reality here is that section 440( d) [of AEDP A] effects a drastic change in the law relating to the immigration consequences for a lawful permanent resident .... mak[ing] deportation automatic for convictions falling within the enumerated categories. "); see also State v. Rojas-Martinez, 73 P.3d 967, 970 (Utah Ct App. 2003), cert. granted, 80 P.3d 152 (2003)("because the 1996 amendments to the Immigration and Nationality Act eliminated all discretion as to deportation of non-citizens convicted of aggravated felonies, [defendant's] plea of guilty means virtually automatic, unavoidable deportation"(quoting Cuoto, 311 F.3d at 66 183-84)). See generally Wilson v. McGinnis, No. 03 Civ. 4625, 2004 WL 1534160 at n. 4 (S.D.N.Y. July 8, 2004), aff'd, 413 F.3d 196 (2d Cir. 2005)(noting commentators "have argued that deportation has become almost inevitable and should be considered more a direct, rather than collateral, consequence of a plea.")( citing Susan L. Pilcher, Justice Without a Blindfold: Criminal Proceedings and the Immigrant Defendant, 50 Ark. L. Rev. 269,273 (1997)). Therefore, there is good reason to divert from Ford because its basic premise was only true until 1996. FUlihermore, prior to Respondent's 1996 plea, a wealth of New York standards and resources indicated that "meaningful representation" comprised advice about deportation. See People v. Bennett, 903 N.Y.S.2d 696, 701 (Crim Ct, Bronx County 2010) ("[T]he New York State Bar Association has been publishing articles advising criminal attorneys to study and advise their clients regarding the immigration consequences of guilty pleas and criminal convictions since 1989"); Bendik and Cardoso, Immigration Law Considerations for the Criminal Defense Attorney, 61 N.Y. St. B.J. 33 (July 1989); Training: Immigration Law for the General and Advanced Practitioner, New York State Bar Association, New York, May 1984; Margaret McManus, Immigration Consequences of Criminal Conduct, Sept. 1985 (training materials 67 prepared for Criminal Defense Division of the Legal Aid Society of New York); Marvin E. Schechter, Immigrants, Drug Convictions and the Certificate of Relieffrom Civil Disabilities, New York State Defenders Association Public Defense Backup Center RepOli, Vol. III No.3, Mar. 1988; Kari Converse, Criminal Defense of Non-Citizens, The Judicial Recommendation Against Deportation, Mouthpiece: Newsletter of the New York State Association of Criminal Defense Lawyers, Vol. 3 No.1, June 1990; Sarah M. Burr, Immigration Consequences of Criminal Convictions for Non-Citizen Fletchers, 199011991 (training materials prepared for Criminal Defense Division of The Legal Aid Society of the City of New York). Therefore, this COUli should find that the duties set forth in Point II of this brief are found in state and federal law. Therefore, Chaidez will have no effect on the retroactive application of those critical duties necessary to protect the rights of immigrant defendants. POINT II THIS COURT SHOULD AFFIRM THE APPELLATE DIVISION'S REVERSAL AND REMAND FOR A HEARING BECAUSE THE LOWER COURT, INTER ALIA, MISTAKENLY USED A DISCRETIONARY STANDARD AND, IMPORT ANTL Y, REFUSED TO APPL Y PADILLA V. KENTUCKY BECAUSE OF A MISTAKEN BELIEF ABOUT ITS 68 RETROACTIVE APPLICATION AND RESPONDENT HAD A STRONG CLAIM BECAUSE HE WAS NOT TOLD THE CLEAR AND SUCCINCT IMMIGRATION CONSEQUENCES OF HIS CONVICTION - THAT HE WAS CONVICTED OF AN AGGRAVATED FELONY UNDER IMMIGRATION LAW AND THAT HE WOULD BE DEPORTABLE WITH NO DISCRETIONARY RELIEF AND COULD NEVER TRA VEL AND RE-ENTER THE UNITED STATES AND WOULD BE FOREVER BARRED FROM CITIZENSHIP; AND, IT WAS OBVIOUS THAT DEFENDANT WOULD NEVER HA VE TAKEN THE PLEA HAD HE KNOWN THIS CRITICAL INFORMATION BECAUSE HE CATEGORICALLY INDICATED THAT HE WANTED HIS PLEA BACK FOR OTHER REASONS SOON AFTER THE GUILTY PLEA WAS ENTERED AND HIS ENTIRE F AMIL Y WAS HERE AND THERE IS A REASONABLE PROBABILITY THAT HE WOULD HA VE GONE TO TRIAL OR, AT MINIMUM, TAKEN A PLEA WITH THE SAME SENTENCE OR GREATER SENTENCE ON THE LAST COUNT OF THE INDICTMENT WHICH WAS NOT AN AGGRAVATED FELONY UNDER IMMIGRATION LAW REQUIRING PRESUMPTIVELY MANDATORY DEPORTATION. There can be no doubt that defendant wanted to go to trial because soon after his first plea of guilty he moved to take it back for other reasons, noting that he pleaded guilty because of pressure from his co-defendant who would only get probation if defendant took two to six years in jail. His lawyer does not remember whether he gave him immigration warnings and, even though he clearly had the duty to advise the defendant of these consequences, it is unlikely that counsel told him about the effect of the statute which had only passed 69 Congress several months earlier. His failure to seek a plea to the last count also showed he did not consider immigration issues. Defendant turned his life around and, afterward, did his time in penal jail and an extra year in immigration jail. Therefore, not only was there a reason to vacate the plea under the state and federal constitutions, but there is no need for this conviction to exist anymore - defendant has been punished and rehabilitated and he has proved that. The Court's opinion denying the motion, cited the wrong statute, applied the wrong standard, and found, without any analysis except to cite one lower court case that Padilla v. Kentucky is not to be given retroactive effect. * * * Defendants are entitled to clear advice about the immigration consequences of their convictions. The Supreme Court, in Padilla v. Kentucky, 559 U.S. _, 130 S.Ct. 1473 (2010), ruled that the passage of laws in 1990 and, more importantly, AEDP A and IRA IRA in 1996, with its expansion of deportable offenses and abolition of waivers for celiain crimes, made knowledge of immigration consequences critical for criminal counsel. As the Court stated: These changes confirm our view that, as a matter of federal law, deportation is an integral pati-indeed, sometimes the most 70 important part - of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes. 130 S.Ct. at 1480. Therefore, as the Court ruled, immigration consequences are no longer collateral. This makes perfect sense because in many cases, such as this one, the irrunigration consequences are worse than or equal to the penal ones. See INS v. St. Cyr, 533 U.S. at 321 ('''[p]reserving the clients' right to remain in the United States may be more important to the client than any potential jail sentence."')(citations omitted); Ng Fung Ho v. White, 259 U.S. 276,284 (1922)( deportation can result in a loss "of all that makes life worth living"). Therefore, the Court ruled that counsel must consider the correct immigration consequences in his representation. The Supreme Court opinion set forth the duty as follows: When the law is not succinct and straightforward (as it is in many of the scenarios posited by JUSTICE ALITO), a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear. Padilla v. Kentucky, supra, 130 S.Ct. at 1483. 71 The immigration consequences in this case were exceedingly clear. The aggravated felony statute makes clear that any "offense" involving narcotics trafficking is an aggravated felony. 8 U.S.C. § 1101(a)(43)(B). This means any offense which involves intent to sell or sale of controlled substances is trafficking. See, u., Pascual v. Holder, 723 F.3d 156 (2d Cir. 2013); AguilTe v. INS, 79 F.3d 315 (2d Cir. 1994); 21 U.S.C. § 841. [It should be noted that the last count of the indictment, possession of an eighth of an ounce is not an aggravated felony because there is no element of sale or intent to sell. Aguirre v. INS, 79 F.3d 315 (2d Cir. 1994)(Second Circuit acknowledges that Board of Immigration Appeals has ruled that state narcotics felonies which do not fit within federal felonies are not aggravated felonies under immigration law and, in spite of Second Circuit ruling to the contrary, will respect BIA decision in immigration cases)]. Therefore, defendant should have been told that his plea offense under the 11 th Count was an aggravated felony under immigration law. As noted in Point I, Aggravated felonies make a person deportable with no discretionary relief. See, 8 USC §§J227(a)(2)(A)(iii)(stating immigrant "shall" be deported for conviction of aggravated felony), 1229b( a)(3) (immigrants convicted of aggravated felonies ineligible for remedy of cancellation of removal). Of equal importance is the fact that a conviction for 72 an aggravated felony is also a lifetime bar to citizenship. 8 USC § 1101(f)(8). This is a critical concern. When a defendant is absolutely deportable with no discretionary relief, a general warning that a conviction might cause immigration consequences is not sufficient when the consequences are much more clear and dire. People v. Garcia, 2010 N.Y. Misc. LEXIS 4076. This is because, as noted above, if the consequences are clear, the advice must also be clear. Padilla v. Kentucky, supra, 130 S.Ct. at 1483. A reading of Padilla shows that its holding is based on the seminal ineffectiveness case of Strickland v. Washington. Both Padilla and Strickland make clear that ineffective assistance of counsel claims have two prongs. Accordingly, a defendant is deprived of his right to counsel when the attorney (a) fails to provide "reasonably effective assistance," that does not fall below an "objective standard of reasonableness." Strickland, 466 U.S. 668 at 687-88; and (b) "there is a reasonable probability that but for counsel's unprofessional errors, the result would have been different," id. at 694( emphasis added). As to the first prong, it is clear that at the time of the taking of this plea it was sub-par professional conduct not to competently advise a client as to the clear immigration consequences of the conviction. Two of the sources cited by 73 the Comi to support the duty to know and discuss immigration consequences were dated prior to this plea of guilty. National Legal Aid and Defender Assn., Performance Guidelines for Criminal Representation §f6.2 (1995); ABA Standards for Criminal Justice, Prosecution Function and Defense Function 4-5.1(a), p. 197 (3d ed. 1993). More importantly, AEDPA, and IRA IRA which are the last federal laws to drastically change deportation and admissibility consequences of convictions was passed in April and September of 1996, respectively, which was prior to this plea of guilty on December 23, 1996. These were the two statutes whose passage the Padilla court used to find the duty expressed in Padilla - that counsel should know the clear immigration consequences of the conviction. 130 S.Ct. at 1480. Therefore, at the time of this plea in December of 1996, it was incumbent upon counsel and the defendant to know about the clear consequences of this conviction and the availability or non-availability of discretionary relief or citizenship. Defendant, according to the law, deserved to know the true stakes involved in his case. Of course, there is also a second prong. Even when an attorney violates his responsibility to advise the defendant of the clear immigration consequences, a defendant will not obtain vacatur of his plea unless he can show that had he been given the correct advice, there is a reasonable probability 74 the result would have been different. Strickland v. Washington, supra, 466 U.S. at 694; Padilla v. Kentucky, 130 S.Ct. at 1482. It bears emphasizing that the words "reasonable probability" do not require categorical proof that defendant would definitely have litigated the case had he been given the correct advice under Padilla. In deciding whether the defendant would have taken the plea but for the bad advice on non-advice, the Couto and McDonald courts criticized lower courts that emphasized the prosecution testimony it expected to be presented at a future trial. People v. McDonald, 1 N.Y.3d at 115 ("Contrary to the People's contention and the Appellate Division's holding below, the prejudice inquiry does not necessitate a prediction analysis as to the outcome of the proceeding"). United States v. Couto, 311 F.3d at 186, 191 ("The defendant's overriding concern is remaining in the United States and hence that she very likely would not have pleaded guilty" but for the misrepresentation of the immigration consequences); accord, United States v. Vaval, 404 F.3d 144, 151 (2d Cir. 2005). Therefore, it is not whether the defendant would lose a trial but whether there is a reasonable probability that he would not have taken the plea of guilty that he did or whether the conviction result would have been different. In determining whether a defendant would have gone to trial had he known the 75 immigration consequences, it is an important factor that he moved to take back his plea for other reasons prior to the sentencing in the case. Gonzalez v. United States, 2013 WL 3455501 (2d Cir. 2013). The motion court cannot ignore this important factor. Id. It should also be noted that if the state constitution were applied, the prejudice prong is a relevant but not an absolutely necessary element of the claim. People v. Stults, 2 N.Y.3d 277, 283-84 ("We continue to regard a defendant's showing of prejudice as a significant but not indispensable element in assessing meaningful representation"). * * * The first prong of Padilla was satisfied. As noted above, his attorney does not remember what discussions were had about immigration consequences and defendant has sworn that he was never told the immigration consequences of the conviction. And, of course, nowhere in the record is defendant ever warned of the risk of deportation or the loss of his chance at citizenship. Defendant should have been told the dire consequences of this plea - that he was pleading guilty to an aggravated felony under immigration law that made him deportable with no remedy and that he would be batTed for the rest of his life from becoming a citizen. Furthermore, had the immigration consequences been brought up, it is 76 undeniable that defendant would have sought to plead to the weight count which would have allowed him to seek citizenship. The defendant was agreeing to do two to six years in jail. Had his lawyer brought up the immigration issue, it is reasonably probable that the People would have allowed him to plead guilty to the last count. The failure to craft such a plea makes it highly likely that the issue was never brought up and never considered. If the People contest this reasonable assertion, at minimum, an evidentiary hearing should have been required on the subject and that is what the Appellate Division ruled. For the above reasons, the second, prejudice prong has also been satisfied. The defendant would have cared about these consequences had they been brought up. He noted that he had been in the United States for many years and, in December of 1996 (the time of the plea), he had his whole family here, which included parents, a child, his wife, and brothers and sisters. Further, this defendant, prior to sentencing, unequivocally indicated his willingness to go to trial by filing a motion to take back his plea. Indeed, the validity of this other motion was hotly contested and the lower court's decision to deny the involuntariness motion was affirmed only by divided courts in the Appellate Division and the Court of Appeals, where vigorous dissents were filed. People 77 v. Roman Baret, 11 N.Y.3d 31 (2008),43 A.D.3d 648 (1 st Dept. 2007). Therefore, it is clear that defendant had indicated his interest in a trial prior to sentencing in 1997, many years ago. It is not as if he waited for decades to request a trial. This is a very important factor not mentioned by the 440 court. Gonzalez v. United States, 2013 WL 3455501 (2d Cir. 2013). By adding the immigration issue to the mix, the request to take his plea back and his desire for a trial or a different plea becomes even stronger. Further, it is not only whether a defendant would win a trial but whether, knowing the immigration consequences, there is a reasonable probability that he would have sought and obtained a plea on another count that would allow him to ask for citizenship. see, People v. McDonald, 1 N.Y.3d at 115; United States v. Couto, 311 F.3d at 186,191; accord, United States v. Vaval, 404 F.3d 144, 151 (2d Cir. 2005); See, Padilla v. Kentucky, 130 S.Ct. at 1486 (competent counsel with a rudimentary understanding of immigration law can craft a plea bargain that substantially reduces the likelihood of depOliation). However, even if the Court were to consider the proposed evidence at the trial, there was a defense in this case. Although the police alleged that defendant made numerous sales, he was never arrested after each of these sales until, his co-defendant, Nunez made a sale on a later date. It may have been 78 possible that his presence at the final sale location may have led the police to mistakenly believe that he was the person who had made the other sales. Therefore, because he would have gone to trial or taken another disposition, there is a reasonable probability that he would have rejected the instant plea of guilty, the result would have been different, and the second prong of Strickland, therefore, was satisfied by our motion below. Strickland, 466 U.S. at 694. A hearing, at minimum, was indicated, as the Appellate Division ruled. CONCLUSION FOR THE REASONS STATED ABOVE THIS COURT SHOULD AFFIRM THE ApPELLATE DIVISION'S ORDER. Respectfully submitted, Labe M. Richman Attorney for Defendant 305 Broadway, Suite 100 New York, NY 10007 (212) 227-1914 79 ADDENDUM 80 CRIMINAL COURT OF THE CITY OF NEW YORK BRONX COUNTY: Part AP3 THE PEOPLE OF THE STATE OF NEW YORK Respondent v. MARSHA AUSTIN, Defendant. ANN E. SCHERZER, J. Docket No. 2002BX000415 Defendant Marsha Austin was convicted of Criminal Sale of Marijuana in the Fourth Degree (PL § 221.40) on January 3, 2002, after a plea of gUilty. She petitioned this Court pursuant to Criminal Procedure Law § 440.1 0(1 )(h) to vacate this conviction on the grounds that she was deprived of her right to effective assistance of counsel as defined by Padilla v Kentucky, 130 SCt 1473 (2010). A hearing was held pursuantto CPL § 440.30(5) and the Court subsequently issued an order on December 28,2012 granting defendant's motion. This written decision further explains the reasoning behind this Court's ruling. Defendant is a sixty-five-year-old native of Jamaica and a lawful permanent resident of the United States. (Defendant's Motion to Vacate Judgment at Exhibit B paragraph 3). She is part ofa tight knit family consisting of her husband Desmond, their seven children and many grandchildren and great grandchildren. Id. at Exhibit B paragraph 4. Most of her children and grandchildren live near her and she plays a very active part in their lives. Id. She is also her husband's sole caretaker. Mr. Austin, who has lost a leg, suffers from diabetes and high blood pressure and has survived triple bypass surgery and numerous strokes, relies heavily on his wife's assistance. Id. On January 3, 2002, defendant was arrested and charged with Criminal Possession ofa Controlled Substance in the Seventh Degree (PL § 220.03), Criminal Sale of Marijuana in the Fourth Degree (PL § 221.40), Criminal Possession of Marijuana in the Fifth Degree (PL § 221.10(1), and Unlawful Possession of Marijuana (PL § 221.05.) The Criminal Court complaint filed against her alleged that after engaging in a drug related conversation with an undercover officer, defendant gave him three bags of marijuana in exchange for money. A subsequent search of her person yielded two bags of alleged crack cocaine. At her arraignment later on January 3rd, defendant met with her court appointed lawyer, Steven Talaber of the Legal Aid Society. (Defendant's Motion to Vacate Judgment at 4). She pled guilty to the charge of Criminal Sale of Marijuana in the Fourth Degree and was sentenced to complete 70 hours of community service to be supervised by the CASES program. Id. In 2010, on an unrelated matter, defendant was charged with Criminal Possession of a Controlled Substance in the Seventh Degree and was ordered to complete a drug treatment program with the understanding that the charge would be dropped upon successful completion of the program. rd., at 5. Five months into her treatment, she violated the rules of the program by consuming alcohol and was sentenced to two days in jail. Id., at 2. While she was incarcerated, US Immigration and Customs Enforcement issued a detainer and charged defendant with a violation of Section 237 (a)(2)(A)(iii) of the Immigration and Nationality Act, based on her 2002 conviction, among other convictions. 1 On May 25,2012, Immigration Judge Alan Page denied defendant's application for cancellation of removal under Immigration and Nationality Act § 240A(a), 8 U.S.C. § 1229b(a). (Board of Immigration Appeals [hereinafter BIA] Decision at 4). The BIA, in turn, dismissed defendant's appeal, holding that her New York misdemeanor conviction is an aggravated felony under the Controlled Substances Act [CSA], 21 U.S.C. §§ 841(a), 841 (b)(l)(D). Id. at p. 3. Defendant moved to vacate her conviction based upon the claim that her former attorney did not advise her of the immigration consequences of a guilty plea as required by Padilla v Kentucky, 130 Sct 1473 (2010) and that she, as a result, was prejudiced by this oversight. The People, in opposition, contend that the fact that Mr. Talaber did not warn defendant about any and all immigration consequences does not amount to ineffective assistance of counsel pre- Padilla and that a defense attorney cannot be held to a standard of performance that ·did not exist at the time ofhislher representation. The People also contend that defendant failed to show prejudice. A hearing was held on October 24,2012. Defendant testified that after her arrest she was taken to Central Booking where she recalls waiting in a crowded holding area for many hours before ultimately meeting her assigned attorney. (Hearing Transcript at 67, lines 6-11.) Her meeting with Mr. Talaber was brief and rushed because the place was very hectic and busy "like a fish market." Id., at 681ines 6-7. Defendant recalls that when she met with him, she expressed great concern with getting back home to her family and that Mr. Talaber advised her to plead 1 Also codified under 8 U.S.C.A. § 1227 (a)(2)(A)(iii). Under this section, "Any alien who is convicted of an aggravated felony at any time after admission is deportable." The term "aggravated felony" means illicit trafficking in a controlled substance, including a drug trafficking crime. See 8 U.S.c.A. § 110 I (43)(8); see also Mosher Aff. at 2. guilty to the charge of Criminal Sale of Marijuana in the Fourth Degree in exchange for a sentence of community service. Id., at 68 lines 12-15. Defendant does not recall discussing her immigration status with Mr. Talaber but is sure that she was not told that a plea to a marijuana sale would result in automatic deportation. Id., at 69 lines 10-17. In fact, defendant is certain that if she had been advised of the immigration consequences she would not have entered a guilty plea without fully exploring all available alternatives. Id. Mr. Talaber testified that he had no independent recollection of this case or of defendant. (Hearing Transcript at 7-8). However, he asserted that ifhe was aware that a client had any potential immigration issues it was his normal custom and practice at arraignments to discuss the impact the pending criminal matter may have on their status. Id., at 24. He also testified that he thinks that in 2002 he was aware that a plea to Criminal Sale of Marijuana in the Fourth Degree would lead to deportation. Id., at 24-25. Under both the New York State and United States Constitutions, a defendant is entitled to etIective assistance of counsel in criminal cases. People v Ramchair, 8 NY3d 313, 316 (2007). In Padilla, the COUlt ruled that claims of ineffective assistance based on counsel's advice on deportation are to be assessed in accordance with the standards set forth in Strickland v Washington, 66 US 668 (1984). Padilla, 130 SCt at 1482. Under Strickland, a defendant who alleges that counsel was ineffective must show not only that counsel failed to provide "reasonable professional assistance" but must also "affirmatively" prove that counsel's performance "[p]rejudiced the defense." Strickland v Washington, 66 US 668, 693-694. With respect to the "prejudice" prong in the context of Padilla, a defendant must show that there is a reasonable probability that but for prior counsel's errors, she would not have pled guilty and would have insisted on going to trial. Hill v Lockhart, 474 U.S. 52, 59 (1985). The standard established in Padilla applies retroactively. People v Baret, 99 AD3d 408, 409 (l st Dept, 2012). This court finds that defendant has sufficiently proven that she received ineffective assistance of counsel and that she suffered prejudice as a result. Defendant asserts that her assigned counsel did not provide effective assistance in that he did not advise her of the immigration consequences of a guilty plea. Mr. Talaber's testimony at the hearing that he has no recollection of the case or of his discussions with defendant does nothing to refute this claim. On the contrary, his testimony on his usual custom and practice interviewing clients at arraignments would seem to indicate that he was not aware of defendant's immigration status since he allowed his client to enter a plea to a charge that would make her automatically deportable. The evidence leaves no doubt that had Ms. Austin been aware of this consequence, she would not have pled guilty. Her entire life revolves around caring for and supporting her family. Her testimony at the hearing and all documents submitted in support of her motion leave no question to the depth of her ties to this country. It is clear that she would not knowingly put herself in a position where she would be separated from her family and from the place she has called home for the past 30 years. Accordingly, the defendant's motion to vacate her conviction is granted. This constitutes the Decision and Order of this Court. Dated: :Sail ')~~ d--~I d-QJ3 Bronx, New Yor dZ4r1-"-----,,,-----" Ann E. Scherzer Judge of the Criminal Court Han. Ann SCherzer