The People, Respondent,v.Richard Diaz, Appellant.

Brief

N.Y.September 11, 2013

To be argued by: ROSEMARY HERBERT, ESQ. (Counsel requests 15 minutes) COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- RICHARD DIAZ, Defendant-Appellant. REPLY BRIEF FOR DEFENDANT-APPELLANT RICHARD M. GREENBERG, ESQ. Attorney for Defendant-Appellant By: ROSEMARY HERBERT, ESQ. rherbert@appellatedefender.org Supervising Attorney OFFICE OF THE APPELLATE DEFENDER 11 Park Place, Suite 1601 New York, NY 10007 (212) 402-4100 (phone) (212) 402-4199 (fax) Date Completed: March 7, 2013 -i- TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 POINT ONE: A CHALLENGE TO THE VOLUN- TARINESS OF MR. DIAZ’S GUILTY PLEA DOES NOT REQUIRE PRESERVATION A N D T H E CLAIM IS FULL Y REVIEWABLE BY THIS COURT (Replying to Respondent’s Brief at 19-24) . . . . . . . . . . . . . . . . . . . . . . . 1 POINT TWO: RESPONDENT’S ARGUMENT IGNORES CHANGES IN IMMIGRATION LAW AND THE ANALYSIS IN PADILLA, BOTH OF WHICH DICTATE THAT DEPORTATION MUST NOW BE VIEWED AS A DIRECT CONSEQUENCE OF A GUILTY PLEA (Replying to Respondent’s Brief at 24-31) . . . . . . . . . . . . . . . 6 POINT THREE: CONTRARY TO RESPONDENT’S CLAIM, THE WARNING GIVEN IN THIS CASE WAS MISLEADING AND RENDERED MR. DIAZ’S GUILTY PLEA INVALID (Replying to Respondent’s Brief at 31-35) . . . . . . . . . . . . . . 12 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 -ii- TABLE OF AUTHORITIES CASES PAGE Chaidez v. United States, __ U.S. __ , 2013 WL 610201 (Feb. 20, 2013) . . . 9, 10 Padilla v. Kentucky, 559 U.S. __, 130 S.Ct. 1473 (2010) . . . . . . . . . 7, 8, 9, 10, 11 People v. Belliard, __ N.Y.3d __, 2013 Slip Op. 00884 (Feb.12, 2013) . . . . . . 1, 4 People v. Boyd, 12 N.Y.3d 390 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 4 People v. Catu, 4 N.Y.3d 242 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 People v. Ford, 86 N.Y.2d 397 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 People v. Lopez, 71 N.Y.2d 662 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 3 People v. Louree, 8 N.Y.3d 541 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2, 3, 4 People v. Hartnett, 16 N.Y.3d 200 ( 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 People v. Van Deusen, 7 N.Y.3d 744 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 STATUTES N.Y. Crim. Proc. Law § 220.50(7) (McKinney 2002 & 2011 Supp.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 11, 12, 13, 15 N.Y. Crim. Proc. Law § 440.10 (McKinney 2005) . . . . . . . . . . . . . . . . . . . . . . 2, 3 -1- ARGUMENT POINT ONE A CHALLENGE TO THE VOLUNTARINESS OF MR. DIAZ’S GUILTY PLEA DOES NOT REQUIRE PRESERVATION AND THE CLAIM IS FULLY REVIEWABLE BY THIS COURT (Replying to Respondent’s Brief at 19-24). Respondent insists that Mr. Diaz’s challenge to the voluntariness of his guilty plea requires preservation. See generally Respondent’s Brief (hereafter “Resp. Br.”) at 19-24. Respondent further argues that, because Mr. Diaz did not object when the court failed to warn him of the immigration consequences of his guilty plea and instead provided inaccurate advice that suggested that he would not face adverse immigration consequences, his current claims are unreviewable in this Court. Resp. Br. at 19. Respondent is incorrect. As this Court has repeatedly recognized, both explicitly and implicitly, a challenge to the voluntariness of a guilty plea does not require preservation and, even in the absence of an objection, presents a question of law that can be reviewed by this Court. See, e.g., People v. Belliard, __ N.Y.3d __, 2013 Slip Op. 00884 (Feb.12, 2013); People v. Boyd, 12 N.Y.3d 390 (2009); People v. Louree, 8 N.Y.3d 541 (2007). In support of its misguided preservation argument, Respondent relies primarily on People v. Lopez, 71 N.Y.2d 662 (1988). See Resp. Br. at 20-22. -2- Respondent’s reliance is misplaced, as the claim in Lopez is entirely different from the voluntariness claim at issue here. Indeed, the Court characterized the issue in Lopez as “a challenge to the factual sufficiency of the plea allocution.” 71 N.Y.2d at 665 (emphasis added). The Court held that, as a general matter, such challenges must be preserved by a motion to withdraw the plea or a motion to vacate the conviction, pursuant to Crim. Proc. Law § 440.10. Id. at 665-66. The Court recognized a “narrow exception” to the preservation requirement, where the defendant’s recitation of the facts itself negates an essential element of the offense and triggers the court’s duty to conduct a further inquiry, id. at 666, but found that this exception did not apply in Lopez. Id. at 666-67. However, Lopez’s discussion of an exception applicable to a challenge to the factual sufficiency of the plea allocution does not support Respondent’s broader claim, namely, that there are no other exceptions applicable to other types of challenges to the validity of a guilty plea. Indeed, as Respondent acknowledges, Resp. Br. at 22-23, this Court concluded in People v. Louree, 8 N.Y.3d at 545-46, that preservation of a challenge to the voluntariness of a guilty plea is not required. While Respondent insists that “the logic of Louree does not help defendant one whit,” Resp. Br. at 23, Respondent’s own description of the Court’s reasoning proves otherwise. 1 In Louree, this Court expressly rejected a preservation argument similar to the one Respondent makes in this case, based on Lopez. See 8 N.Y.3d at 545 (discussing Lopez). 2 When Mr. Diaz later learned that he would be subject to mandatory deportation as a result of his conviction, he moved to vacate his conviction on other grounds, namely, that he (continued...) -3- In Louree, the trial court neglected to advise the defendant during the plea allocution that he would be subject to a term of post release supervision (PRS), but imposed a term of PRS at sentencing. 8 N.Y.3d at 543-44. As Respondent recognizes, this Court found that preservation was not required, due to the “‘actual or practical unavailability of either a motion to withdraw the plea . . . or a motion to vacate the judgment’” in such cases. Resp. Br. at 23 (quoting Louree, 8 N.Y.3d at 546).1 What Respondent ignores, of course, is that a motion to withdraw his plea or vacate the judgment on voluntariness grounds were similarly unavailable to Mr. Diaz, where the only information supplied to him by the court at the time of the plea suggested that his immigration status would not be adversely affected by the guilty plea. See P. 8; A. 12. Like the defendant in Louree, Mr. Diaz could not have known that he would be subject to mandatory deportation as a result of the guilty plea in time to file a motion to withdraw the guilty plea. Similarly, also like the defendant in Louree, the “omission from the colloquy was plain from the record and thus not the proper subject of a 440.10 motion.” Resp. Br. at 23 (citing Louree, 8 N.Y.3d at 546).2 2(...continued) did not receive the effective assistance of counsel. -4- Nor can Louree be viewed as an aberration. To the contrary, this Court has consistently addressed the merits of voluntariness challenges to guilty pleas in the absence of either a motion to withdraw the guilty plea or a motion to vacate the conviction. For example, in People v. Boyd, 12 N.Y.3d 390 (2009), this Court addressed the merits of the defendant’s challenge to the voluntariness of his plea, where the trial court had failed to advise him of the specific term of PRS. In rejecting a claim that preservation was required, the Court quoted from Louree and held that “a postallocution motion was not required to challenge the sufficiency of the plea.” Id. at 393. See also People v. Belliard, __ N.Y.3d __, 2013 Slip Op. 00884 (Feb. 12, 2013) (addressing merits of voluntariness of plea, despite the apparent lack of motion to withdraw plea); People v. Hartnett, 16 N.Y.3d 200, 203 (2011) (addressing voluntariness claim on the merits where defendant “did not move, either before or after sentencing, to withdraw his plea”). Finally, the fact that the plea court was not entirely silent on the subject of immigration consequences does not alter the preservation analysis, as Respondent urges. Resp. Br. at 24. Where the court’s statements were misleading and suggested that adverse immigration consequences would apply only if Mr. Diaz -5- were “here illegally” or had “immigration issues,” P. 8; A. 20, Mr. Diaz “did not possess all the information necessary for an informed choice among different possible courses of action.” People v. Van Deusen, 7 N.Y.3d 744, 746 (2006). In terms of preservation, this case is far more compelling than Boyd, where the defendant was given accurate, but incomplete, advice regarding PRS, and the Court nonetheless concluded that preservation was not required. 12 N.Y.3d at 393 (noting that plea court had “mentioned that the sentence would include PRS at the time of the plea, [but] . . . failed to advise defendant of the specific term of PRS”). -6- POINT TWO RESPONDENT’S ARGUMENT IGNORES CHANGES IN IMMIGRATION LAW AND THE ANALYSIS IN PADILLA, BOTH OF WHICH DICTATE THAT DEPORTATION MUST NOW BE VIEWED AS A DIRECT CONSEQUENCE OF A GUILTY PLEA (Replying to Respondent’s Brief at 24-31). On the merits, Respondent repeatedly mischaracterizes Mr. Diaz’s argument regarding the nature of the trial court’s obligation. Mr. Diaz does not argue that, prior to accepting a guilty plea, the court is “required to inform all defendants of the specific immigration consequences of their pleas.” Resp. Br. at 14 (emphasis added). Nor is it Mr. Diaz’s “current claim” that “New York trial judges . . . must place on the record at every plea proceeding detailed and particularized advice regarding federal immigration law.” Resp. Br. at 20 (emphasis added). See also Resp. Br. at 27. Significantly, Respondent’s inaccurate descriptions of Mr. Diaz’s claim are not accompanied by any citations to his brief, nor could they be. Rather, as consistently argued throughout Mr. Diaz’s Opening Brief, the trial court’s obligation is satisfied when the court provides the advice already mandated by the Criminal Procedure Law, namely, informing a defendant during the plea allocution that “if the defendant is not a citizen of the United States, the defendant’s plea of guilty . . . may result in the defendant’s deportation, exclusion -7- from admission to the United States or denial of naturalization . . . .” Crim. Proc. Law § 220.50(7). See, e.g., Appellant’s Brief (hereafter “App. Br.”) at 25-28, 32. Respondent proceeds to attack the straw man it has created, rather than responding to the arguments Mr. Diaz has actually made. Thus, Respondent urges this Court to reject the argument that Padilla v. Kentucky, 559 U.S. __, 130 S.Ct. 1473 (2010), imposes “new burdens upon state trial judges.” Resp. Br. at 24. However, Mr. Diaz does not claim that Padilla imposes any new burden on trial judges in New York. That burden already exists and was imposed by the legislature, when it enacted section 220.50(7) of the Criminal Procedure Law. What Mr. Diaz does argue, however, is that the analysis employed by the United States Supreme Court in Padilla renders unconstitutional that portion of § 220.50(7) that precludes a finding that a guilty plea made in the absence of the required warning is not knowing, intelligent and voluntary. In other words, in the wake of Padilla, the warning language contained in section 220.50(7) must now be considered mandatory, not merely advisory. Moreover, Respondent’s superficial analysis of Padilla ignores the clear import of that decision. Of course, Padilla did not “classify immigration consequences as direct or collateral for purposes of guilty pleas,” as Respondent correctly points out. Resp. Br. at 26. That is hardly surprising, where the Court 3 Notwithstanding the Court’s unequivocal language in Padilla, Respondent nonetheless takes issue with the “inevitable” and mandatory nature of deportation, insisting that Immigration and Customs Enforcement (ICE) exercises considerable discretion in deciding whether to bring deportation proceedings. Resp. Br. at 28-31. This argument must be rejected, particularly where there is no indication that this discretion is exercised with respect to noncitizens convicted of crimes. Similarly, the fact that “ICE does not have sufficient resources to enforce the law against everyone who is subject to it,” Resp. Br. at 30, (continued...) -8- found that the distinction between direct and collateral consequences was not relevant to the ineffective assistance of counsel issue in Padilla. 130 S.Ct. at 1481. Omitted from Respondent’s discussion of Padilla is any explanation of how those significant portions of Padilla, in which the Supreme Court emphasized both the punitive nature of deportation and its close connection to the criminal justice system, can any longer be reconciled with the characterization of immigration consequences as merely “collateral.” For example, the Court noted that deportation is “a particularly severe ‘penalty’” that, while not “in a strict sense, a criminal sanction . . . is nevertheless intimately related to the criminal process.” 130 S.Ct. at 1481 (citation omitted). The Court also observed that “deportation 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.” Id. at 1480(footnote omitted). Finally, the Court concluded that “[t]he ‘drastic measure’ of deportation . . . is now virtually inevitable for a vast number of noncitizens convicted of crimes.” Id. at 1478 (citation omitted).3 3(...continued) has no bearing on the Padilla analysis. -9- Instead of acknowledging that the immigration landscape has changed dramatically in the eighteen years since this Court decided People v. Ford, 86 N.Y.2d 397 (1995), and that the resulting changes have made deportation a “definite, immediate and largely automatic” consequence of a guilty plea for a noncitizen, id. at 403, Respondent cites to recent decisions from this Court which have applied Ford’s distinction between direct and collateral consequences. Resp. Br. at 25-27 (citing cases). Respondent misses the point, however. Mr. Diaz is not arguing that Ford’s dividing line needs to be scrapped, but rather that changes in immigration law since Ford – changes recognized in Padilla – dictate that immigration consequences must now be placed on the direct, rather than the collateral, side of that line. The impact of the changed landscape reflected in Padilla finds additional support in the United States Supreme Court’s recent decision in Chaidez v. United States, __ U.S. __ , 2013 WL 610201 (Feb. 20, 2013). In Chaidez, the Court held that Padilla “announced a new rule” and therefore did not apply retroactively. Id. at *10. In reaching this decision, the Court engaged in a lengthy discussion of 4 Chaidez quoted the passages from Padilla upon which Mr. Diaz has relied and which are quoted above, supra at 8. Id. at *6 (quoting Padilla, 130 S.Ct. at 1481). -10- direct and collateral consequences.4 Id. at *6. Chaidez concluded that the decision in Padilla had “breach[ed] the previously chink-free wall between direct and collateral consequences” and did so in a way that “altered the law in many jurisdictions.” Id. This Court should recognize that, after this alteration, immigration consequences can no longer be dismissed as merely collateral consequences which can be omitted from a plea allocution. Respondent continues to rely on its mischaracterization of Mr. Diaz’s claim when it argues that “defendant misreads Padilla as extending to the plea court an attorney’s obligation to explain immigration consequences.” Resp. Br. at 27 (emphasis added). According to Respondent, “[s]uch a requirement would blur the differing roles of the court and defense counsel,” by causing the court to “intrud[e]” upon the confidential attorney-client relationship. Resp. Br. at 27. Once again, Respondent exaggerates the obligations of the trial court advocated by Mr. Diaz. To satisfy its statutory and constitutional duty, the plea court does not need to “determine the citizenship status of every pleading defendant,” much less “the precise immigration consequences that pertain.” Resp. Br. at 27. Simple compliance with the existing statutory requirement entails only -11- that the court inform a defendant, at the time of his plea, that if he is not a citizen, his guilty plea can result in his deportation, exclusion or denial of naturalization. See Crim. Proc. Law § 220.50(7). No “determin[ation] of citizenship status” or “precise immigration consequences” is required. Such a warning would confirm that the defendant and his attorney have previously discussed the immigration consequences of the plea, or, if no such discussion had occurred, alert both the defendant and counsel to the need to do so before proceeding with the plea. Such a warning is entirely consistent with the obligations of counsel recognized in Padilla. See 130 S.Ct. at 1482-86. Significantly, however, that warning was not given to Mr. Diaz and, as a result, his plea was not knowing, intelligent and voluntary. -12- POINT THREE CONTRARY TO RESPONDENT’S CLAIM, THE WARNING GIVEN IN THIS CASE WAS MIS- LEADING AND RENDERED MR. DIAZ’S GUILTY PLEA INVALID (Replying to Respondent’s Brief at 31- 35). Respondent does not claim that the plea court provided the warning mandated by Crim. Proc. Law § 220.50(7), nor could it do so. However, Respondent attempts to minimize the deficiencies in the warning actually given by the court, describing it as “appropriate” and insisting that it was “remarkably similar to the statutorily prescribed language.” Resp. Br. at 31. Respondent’s efforts to equate the inadequate and misleading warning issued by the plea court with the warning mandated by the legislature must be rejected. Respondent’s attempt to parse the warning language used by the court is strained and illogical. For example, Respondent maintains that the court’s reference to “immigration issues” must be “equated with lack of citizenship.” Resp. Br. at 32. This bald assertion, unaccompanied by any explanation or citation to authority, makes no sense. “Immigration issues,” at a minimum, conveys the existence of some pre-existing problem or irregularity with immigration status, such as an expired visa or green card. It cannot reasonably be -13- equated with the far broader category of noncitizens, many of whom, like Mr. Diaz were lawful permanent residents, with no “immigration issues.” Respondent also insists, again without explanation or citation to authority, that any noncitizen facing a “felony narcotics charge . . . would have appreciated that the indictment alone posed a very serious immigration issue indeed.” Resp. Br. at 33. According to Respondent, there was no likelihood that such a defendant could have “concluded that the court was either not talking to him or was assuring him that he need not fear any immigration consequences at all.” Resp. Br. at 33. Respondent contends that Mr. Diaz should have “assume[d] the worst or . . . ask[ed] for clarification.” Resp. Br. at 33. Respondent’s argument is, in essence, that a noncitizen defendant such as Mr. Diaz “should have known” that his plea to a felony narcotics charge would subject him to adverse immigration consequences. This argument is pure speculation. Moreover, it is fundamentally unfair to place the burden on noncitizens, many of whom may not speak English, may have a limited education and, like Mr. Diaz, have no prior experience with the criminal justice system. Indeed, by requiring courts to warn noncitizen defendants that their guilty pleas “may result in deportation, exclusion from admission . . . or denial of naturalization,” Crim. Proc. Law § 220.50(7), the legislature has already rejected 5 Because nothing in this record (or otherwise) dispels the conclusion that Mr. Diaz was ignorant of the mandatory deportation consequence of his plea, Respondent’s claim that he is seeking to “relitigate factual findings,” Resp. Br. at 35, is simply wrong. -14- allocating the burden to the noncitizen defendant and, along with it, the notion that noncitizen defendants should simply “assume the worst.” Resp. Br. at 33. Similarly untenable is Respondent’s argument that “it would be patently unfair if a non-citizen who knew all of the contours of potential immigration consequences could upset his conviction solely because a court neglected to tell him what he already knew.” Resp. Br. at 34. Respondent’s concern is entirely hypothetical, of course, since there is no indication that Mr. Diaz had any understanding whatsoever of the dire immigration consequences of his plea.5 Moreover, the potential for a “windfall” resulting from a court’s failure to inform a defendant of any direct consequences of a guilty plea already exists. In the PRS context, for example, this Court has never required a defendant to demonstrate ignorance of the PRS component of the sentence in order to vacate a guilty plea, where the court omitted information about PRS from its allocution. See generally People v. Catu, 4 N.Y.3d 242 (2005) (analysis focused exclusively on plea court’s obligation to advise regarding PRS; no mention made of defendant’s knowledge or lack thereof). -15- Respondent’s efforts to parse, equate and justify the language used by the plea court cannot obscure the basic fact that the court’s warning could only reasonably have been interpreted as an assurance that Mr. Diaz, a lawful permanent resident with a valid green card, would not be “adversely affected” by his guilty plea. The court’s substantial deviation from the warning required by Crim. Proc. Law § 220.50(7) deprived Mr. Diaz of information critical to a knowing, intelligent and voluntary plea. Accordingly, his plea must be vacated. -16- CONCLUSION For these reasons and for those set forth in Richard Diaz’s Opening Brief, Mr. Diaz’s guilty plea must be vacated. Dated: March 7, 2013 New York, New York RICHARD M. GREENBERG, ESQ. Attorney for Defendant-Appellant By: ______________________________ ROSEMARY HERBERT, ESQ. Rherbert@appellatedefender.org Supervising Attorney OFFICE OF THE APPELLATE DEFENDER 11 Park Place, Suite 1601 New York, NY 10007 (212) 402-4100 (phone) (212) 492-4199 (fax)