The People, Respondent,v.Richard Diaz, Appellant.BriefN.Y.September 11, 2013 To be argued by VINCENT RIVELLESE (15 Minutes Requested) Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - RICHARD DIAZ, Defendant-Appellant. B R I E F F O R R E S P O N D E N T CYRUS R. VANCE, JR. District Attorney New York County Attorney for Respondent One Hogan Place New York, New York 10013 Telephone: (212) 335-9000 Facsimile: (212) 335-9288 danyappeals@dany.nyc.gov HILARY HASSLER VINCENT RIVELLESE ASSISTANT DISTRICT ATTORNEYS Of Counsel FEBRUARY 14, 2013 TABLE OF CONTENTS Page TABLE OF AUTHORITIES .............................................................................................. ii PRELIMINARY STATEMENT ......................................................................................... 1 QUESTIONS PRESENTED .............................................................................................. 6 STATEMENT OF THE CASE .......................................................................................... 7 SUMMARY OF ARGUMENT ......................................................................................... 10 POINT DEFENDANT’S GUILTY PLEA WAS KNOWING, INTELLIGENT AND VOLUNTARY; PADILLA V. KENTUCKY DOES NOT IMPOSE NEW DUTIES UPON TRIAL COURTS TAKING GUILTY PLEAS, AND THE COURT IN THIS CASE DID NOT MISINFORM DEFENDANT ABOUT THE IMMIGRATION CONSEQUENCES OF HIS PLEA. .................. 13 CONCLUSION ................................................................................................................... 38 -ii- TABLE OF AUTHORITIES FEDERAL CASES Padilla v. Kentucky, 130 S. Ct. 1473 (2010) .................... 3-6, 8, 10-11, 13, 15-16, 24-28, 30 Zhang v. United States, 506 F.3d 162 (2nd Cir. 2007) ........................................................... 32 STATE CASES Matter of Randall v. Rothwax, 161 A.D.2d 70 (1st Dep’t 1990), aff’d, 78 N.Y.2d 494 (1991) ............................................................................................ 17 People v. Belliard, 2013 N.Y. Slip Op. 00884 (Feb. 12, 2013) ...................................... 16, 26 People v. Boyd, 12 N.Y.3d 390 (2009) ................................................................................... 22 People v. Catu, 4 N.Y.3d 242 (2005) ......................................................................... 15-16, 27 People v. Clarke, 93 N.Y.2d 904 (1999) ................................................................................ 22 People v. Contant, 77 A.D.3d 967 (2nd Dep’t 2010) ............................................................. 27 People v. Diaz, 92 A.D.3d 413 (1st Dep’t 2012) .................................................................... 4 People v. Fiumefreddo, 82 N.Y.2d 536 (1993) ........................................................................ 14 People v. Ford, 86 N.Y.2d 397 (1995) ........................................................... 11, 15, 25-26, 28 People v. Francabandera, 33 N.Y.2d 429 (1974) .................................................................... 21 People v. Francis, 38 N.Y.2d 150 (1975) ......................................................................... 14, 16 People v. Gravino, 14 N.Y.3d 546 (2010) ................................................ 15-16, 26-27, 30, 34 People v. Harnett, 16 N.Y.3d 200 (2011) ....................................................... 15-16, 26-28, 30 People v. Harris, 61 N.Y.2d 9 (1983) .................................................................................... 15 People v. Lopez, 71 N.Y.2d 662 (1988) ..................................................................... 20-22, 24 People v. Louree, 8 N.Y.3d 541 (2007) ............................................................................. 22-24 -iii- People v. McNair, 13 N.Y.3d 821 (2009) ......................................................................... 21-22 People v. Nixon, 21 N.Y.2d 338 (1967) ........................................................................... 14-16 People v. Seaberg, 74 N.Y.2d 1 (1989) ................................................................................... 21 People v. Thomas, 50 N.Y.2d 467 (1980) ............................................................................... 24 STATE STATUTES Criminal Procedure Law § 220.50 ............................................................ 3, 9-10, 20, 31-35 Criminal Procedure Law § 220.60 ...................................................................................... 23 Criminal Procedure Law § 440.10 ........................................................................ 4-5, 23, 35 Criminal Procedure Law § 470.05 ...................................................................................... 20 Penal Law § 70.71 ................................................................................................................. 18 Penal Law § 220.16 .............................................................................................................. 1-2 Penal Law § 220.21 ................................................................................................................. 2 Penal Law § 220.25 ............................................................................................................... 19 OTHER AUTHORITIES Debbie Schlussel, ICE’s Illegal Alien La Leche League: Forget Catch & Release, Meet Catch & Re . . . Lactate? (Nov. 13, 2007 blog entry) .................................................... 29 Doris Meissner, Commissioner, Immigration and Naturalization Service, Memorandum to Regional Directors et al. ............................................................................. 28 Governor’s Memorandum, L. 1995 ch. 3 § 30 ................................................................. 35 John Morton, Director, United States Customs and Immigration Enforcement, Memorandum to Field Office Directors et al. ........................................................................ 29 Terence P. Jeffrey, Meissner’s Gift to Criminal Aliens (Jan. 27, 2003 blog entry) ............. 29 COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- RICHARD DIAZ, Defendant-Appellant. BRIEF FOR RESPONDENT PRELIMINARY STATEMENT By permission of Chief Judge Jonathan Lippman, defendant Richard Diaz appeals from a February 2, 2012 order of the Appellate Division, First Department. By that order, a unanimous Appellate Division panel affirmed a June 1, 2007 judgment of the Supreme Court, New York County (Bonnie Wittner, J.), convicting defendant, upon his plea of guilty, of Criminal Possession of a Controlled Substance in the Third Degree (Penal Law § 220.16[1]). Defendant was sentenced to a determinate state prison term of 2 ½ years with 2 years of post-release supervision. Defendant has served his sentence and is at liberty. On October 11, 2006, police officers stopped a taxicab in which defendant and codefendant Castillo Morales were riding. When the officers approached the cab, they saw defendant and Morales sitting next to each other in the rear seat of the cab. -2- Morales had his foot on a white plastic bag on the floor in front of him; the officers saw something black inside the bag and suspected that it might be a gun. The police asked who owned the bag, and both defendant and Morales disclaimed ownership and any knowledge of the bag. The police then seized the bag, and inside it, they found a black plastic bag containing a “brick” of cocaine weighing over two pounds. Defendant and Morales were arrested for joint possession of the narcotics. Upon arrest, both men were searched; Morales had $20 and defendant had $1, and each man had two cellular telephones. By New York County indictment number 5387/2006 (A: 24 [indictment]), filed October 26, 2006, defendant and Morales were charged with the Class A-I felony of Criminal Possession of a Controlled Substance in the First Degree (Penal Law § 220.21[1] [possession of over 8 ounces of a narcotic drug]), along with the Class B felony of Criminal Possession of a Controlled Substance in the Third Degree (Penal Law § 220.16[1] [possession of a narcotic with intent to sell]). Pursuant to plea negotiations, the People offered to move to dismiss the first degree count – which required a minimum prison sentence of 8 years and allowed for a maximum sentence of 25 years – provided that defendant and Morales both pleaded guilty to the third degree count. In exchange for his guilty plea to that lesser count, defendant was promised a determinate state prison term of 2 ½ years to be followed by 2 years of post-release supervision. -3- On May 11, 2007, defendant and Morales pleaded guilty to third degree possession in satisfaction of the indictment, thereby securing for each of them a negotiated sentence far shorter than the minimum legal prison term available for the top count. During the course of the plea proceeding, the court warned defendant and Morales generally, in accordance with Criminal Procedure Law Section 220.50(7), that a guilty plea could have adverse immigration consequences. Defendant confirmed that he understood this warning. He never asked the court to elaborate on the potential immigration consequences, he never suggested that he was confused about the court’s warning, and he never moved to withdraw his plea on any ground – much less on the ground that the general nature of the court’s warning rendered his plea involuntary. On June 1, 2007, defendant was sentenced as promised.1 Four years later, on appeal to the Appellate Division, First Department, defendant contended for the first time that the plea court’s warning that defendant’s plea could adversely affect his immigration status rendered his plea involuntary. More specifically, defendant contended that the Supreme Court’s holding in Padilla v. Kentucky, 130 S. Ct. 1473 (2010) – explaining an attorney’s obligation to advise his client on the immigration consequences of pleading guilty to a crime – created a new obligation for state trial judges. According to defendant, Padilla’s reasoning rendered 1 Morales was sentenced in a different proceeding that same day to the same sentence as defendant, and he did not appeal. -4- immigration consequences “direct” rather than “collateral,” so that state judges must inform all pleading defendants of the specific federal immigration consequences to which their pleas would expose them. Defendant further contended that the court’s general warning – “if you’re not here legally or if you have any immigration issues[,] these felony pleas could adversely affect you” – was ambiguous and that, despite the seriousness of the charges against him, it was fairly construed under defendant’s particular circumstances to convey the message that he was in no danger of deportation at all. On February 2, 2012, the Appellate Division unanimously affirmed defendant’s conviction (A: 2 [People v. Diaz, 92 A.D.3d 413 (1st Dep’t 2012)]). The court found defendant’s challenge to his plea unpreserved and declined to review it in the interest of justice. As an alternative holding, the court rejected the claim on the merits. The court held that Padilla v. Kentucky, which addressed an attorney’s duty to a client, did not expand the duty of a court taking a guilty plea. The Appellate Division further determined that the plea court’s warning “sufficed to apprise defendant that the consequences of his guilty plea extended to his immigration status,” and that “nothing in the court’s allocution misleadingly suggested that defendant would not be deported as a result of pleading guilty.” Finally, the court noted that the effectiveness of defendant’s attorney was not at issue. Defendant had previously raised that claim before the trial court by way of a motion pursuant to Criminal Procedure Law Section 440.10. That motion had been -5- resolved against defendant, on the merits after a hearing, and leave to appeal that decision had been denied.2 In an order dated July 20, 2012 (A: 1), Chief Judge Jonathan Lippman granted defendant’s application for leave to appeal to the Court of Appeals. On appeal to this Court, defendant lodges essentially the same complaints he advanced in the Appellate Division. First, he contends that the plea court was obliged to inform him unequivocally that he “would be automatically deported” as a result of his conviction because, under Padilla v. Kentucky, deportation should now be viewed as a “direct consequence” of a guilty plea. In the alternative, defendant argues that the court’s advice was misleading because it suggested to defendant that his guilty plea to possessing a kilogram of cocaine with intent to sell it posed no danger that he would be deported. 2 As defendant notes in his brief (Defendant’s Brief, pp. 6-7), on May 7, 2010, nearly three years after the judgment was entered, defendant had moved pursuant to Criminal Procedure Law Section 440.10 to vacate his conviction on the ground that his attorney provided ineffective assistance by failing to inform him that the plea would result in mandatory deportation. On October 26, 2010, after an evidentiary hearing at which defendant and his prior attorney testified, Justice Wittner denied defendant’s motion. Justice Wittner found that defendant’s attorney had most likely warned him only that he would probably be deported for pleading guilty, rather than that deportation was mandatory, and that Padilla required the stronger warning. However, in light of the warning defendant did receive from counsel, the strength of the case against defendant, and his exposure to a much longer sentence if convicted of the top count, defendant failed to meet his burden of showing that he would not have pleaded guilty had the warning been couched in mandatory terms. In a decision dated January 18, 2011 (A: 30 [M-5863]), Appellate Division Justice John W. Sweeny denied defendant’s application for leave to appeal Justice Wittner’s decision. -6- QUESTIONS PRESENTED 1. Did defendant preserve a question of law regarding the voluntariness of his plea or the sufficiency of the plea allocution, where he neither moved to withdraw his plea nor gave the trial court any other opportunity to address his current claims? 2. Under Padilla v. Kentucky, 130 S. Ct. 1473 (2009), an attorney is required to provide his client with complete and particularized advice on the effect of a state guilty plea on that particular client’s immigration status, which is determined independently by federal immigration law and the actions of the United States Immigration and Customs Enforcement Agency. Does Padilla v. Kentucky also require that, in order for a guilty plea to be voluntary under New York law, a state court must place complete and particularized immigration advice on the record during the guilty plea colloquy? 3. New York law requires that a court, before accepting a guilty plea, warn a non-citizen defendant generally that he might be “at risk” of deportation based upon his plea. Did the court’s warning here to defendant – a non- citizen – to the effect that a guilty plea “could adversely affect” someone with “immigration issues” mislead defendant into concluding that, given his personal circumstances, he was actually immune from immigration consequences as a result of his guilty plea? The Appellate Division answered all three questions in the negative. -7- STATEMENT OF THE CASE On March 30, 2007, defendant and his attorney appeared before Justice Richard Carruthers for a bail hearing. At that proceeding, defendant’s attorney informed the court that defendant had “a green card” (A: 17 [Mar. 30, 2007 Procs.: 3]). On May 11, 2007, defendant and codefendant Morales appeared with their respective attorneys before Justice Bonnie Wittner for trial on the indictment charging them jointly with Criminal Possession of a Controlled Substance in the First Degree (a Class A-I felony) for knowingly possessing over 8 ounces of cocaine, and with Criminal Possession of a Controlled Substance in the Third Degree (a Class B felony) for possessing the cocaine with intent to sell it. The People offered a “no split” plea bargain under which both defendants would be allowed to plead guilty to the lesser count of third degree possession with the promise that each would be sentenced to serve 2 ½ years in state prison followed by 5 years of post-release supervision (A: 6 [Plea: 2]). After Morales expressed interest in the plea offer, defendant’s attorney explained that he had just “started to speak to” defendant about the plea. Accordingly, the court set the case aside to give them time to discuss it. Thereafter, the case was recalled and adjourned to 2:15 p.m. for hearing and trial. The People were not ready, however, so the case was called again to be adjourned for hearing and trial on a future date. The court inquired whether the offer made earlier that day was -8- “still open”; the prosecutor stated that the offer would remain available “pre-hearing,” and the court adjourned the case to a future date for hearing and trial. However, the case was called again that same day, because defendant decided to accept the plea offer (A: 7-8 [Plea: 3-4]). Each defense attorney in turn informed the court that his client wished to plead guilty to one count of third degree criminal possession of a controlled substance, in full satisfaction of the indictment (A: 8-9 [Plea: 4-5]). Both defendants then swore under oath to tell the truth, and the court posed questions about their respective desire to plead guilty (A: 9 [Plea: 5]). As to defendant in particular, the court asked whether he had “discussed the case” and his “decision to plead guilty” with his attorney, and defendant answered, “Yes” (A: 10 [Plea: 6]). The court then asked defendant, “How do you plead to Criminal Possession of a Controlled Substance in the Third Degree, guilty or not guilty?” Defendant replied, “Guilty” (id.). The court recounted the allegation that both defendants “jointly possessed a brick of cocaine weighing over two pounds,” that “it was in a plastic bag,” and that they “were intending to sell it” (id.). The court asked whether this was true, and defendant replied, “Yes” (A: 10-11 [Plea: 6-7]). Defendant also confirmed that he understood that by pleading guilty he was waiving his trial rights, including the right to have a jury decide the case, the right to have his lawyer argue the case, the right to have witnesses examined, the right to decide whether to remain silent or to testify, and the right to demand proof beyond a reasonable doubt (A: 11 [Plea: 7]). -9- The court called the parties’ attention to the fact that the bargained-for 5 years of post-release supervision was not a permissible component of the sentence, since 2 years was the legal maximum. With that downward correction made, the court inquired of defendant whether any promises had been made to him other than that the sentence would be 2½ years of prison followed by 2 years of post-release supervision; defendant replied, “No” (A: 11-12 [Plea: 7-8]). Then, in response to the court’s query whether he was “pleading guilty of [his] own free will,” defendant replied, “Yes” (A: 12 [Plea: 8]). Finally, the court warned both defendants, in general accordance with the provisions of Criminal Procedure Law Section 220.50(7), that “if you’re not here legally or if you have any immigration issues[,] these felony pleas could adversely affect you.” After Morales confirmed his understanding of the warning, defendant separately confirmed that he understood as well, and neither defendant nor his attorney asked the court to elaborate (A: 12 [Plea: 8]). The court accepted the pleas and adjourned the case for sentencing (A: 13 [Plea: 9]). On June 1, 2007, defendant appeared before Justice Wittner for sentencing. The court had before it the Probation Department’s Pre-Sentence Report (“PSR”), prepared based, in part, on an interview with defendant conducted a few days after his plea. The report indicated that, during the interview, defendant had admitted his guilt of possessing over two pounds of drugs with Morales with the intent to sell them (A: 27 [PSR: 2]). Neither defendant nor his attorney sought to amend the PSR’s assertion -10- that defendant was an “undocumented” alien (id.). The People and defendant relied on the court’s promise, and Justice Wittner imposed the promised sentence of 2½ years of state prison to be followed by 2 years of post-release supervision (A: 15-16 [Sentencing: 2-3]). SUMMARY OF ARGUMENT Defendant contends that in light of Padilla v. Kentucky, 130 S. Ct. 1473 (2010), no guilty plea entered in a state court in New York can be valid unless the plea court places on the record an affirmative statement of exactly what federal immigration consequences will flow from the plea (Defendant’s Brief, Point I). He also contends that the court’s warning about immigration consequences in this case could have conveyed the incorrect impression to defendant that he was immune to deportation (Defendant’s Brief, Point II). Both contentions are unpreserved and mistaken. As for preservation, to the extent defendant now argues that, as a matter of law, any guilty plea colloquy must include the court’s recitation of any attendant immigration consequences, he clearly should have presented such an argument to the court below. After all, the court expressly mentioned that a plea could “adversely affect” defendant’s immigration status, and any claim that this fell short of the legal requirement for a plea colloquy should have been raised at the plea proceeding or, at the very least, in an appropriate motion before sentencing. Likewise, the court’s warning that a plea could adversely affect defendant either if he were “not here legally” or if he had any other “immigration issues” clearly raised the question of the plea’s -11- effect on defendant’s immigration status. If, as defendant now contends, the wording was ambiguous and might have misled defendant into concluding that a plea would have no effect on his immigration status, it was incumbent on the defense to point out the potential ambiguity in the wording, so that the court could elaborate if necessary. Defendant’s failure to preserve these questions means that he has presented no question of law for this Court to resolve. On the merits, the record reflects that defendant’s plea was knowing, intelligent and voluntary, and defendant’s newfound complaints to the contrary find no support in the law. With regard to his argument that Padilla v. Kentucky requires trial courts to place a defendant’s particular immigration consequences on the record during his plea proceeding, this Court has already rejected that claim. A trial court has no duty to warn a pleading defendant about immigration consequences because they are collateral. People v. Ford, 86 N.Y.2d 397, 403-405 (1995). Padilla v. Kentucky does not supplant Ford’s rule with a new judicial obligation. Padilla held that a defense attorney must advise his client correctly about immigration consequences; it did not purport to make new rules for the conduct of plea proceedings by the court. Moreover, the plea court’s general warning in this case could not reasonably have led defendant to believe that he was safe from immigration consequences. Instead, it plainly conveyed that whether he was illegally present in the country or had any other dealings with immigration authorities, the plea could “adversely affect” his -12- status. Indeed, given the seriousness of the charge to which defendant pleaded guilty, he cannot persuasively argue the contrary. In short, defendant’s failure to move to withdraw his plea, or otherwise to object to the court’s general immigration warning with which he now finds fault, renders his claims unpreserved and beyond the review powers of this Court. In any event, defendant’s plea was valid because it was knowing, intelligent and voluntary. The trial court was not required to place on the record precise immigration advice geared to defendant’s personal status with federal immigration authorities, and the general warning it delivered comported with the law. -13- POINT DEFENDANT’S GUILTY PLEA WAS KNOWING, INTELLIGENT AND VOLUNTARY; PADILLA V. KENTUCKY DOES NOT IMPOSE NEW DUTIES UPON TRIAL COURTS TAKING GUILTY PLEAS, AND THE COURT IN THIS CASE DID NOT MISINFORM DEFENDANT ABOUT THE IMMIGRATION CONSEQUENCES OF HIS PLEA (Answering Defendant’s Brief). Defendant and an accomplice were caught red handed transporting two pounds of cocaine that they plainly intended to sell. As a result, defendant was charged with Criminal Possession of a Controlled Substance in the First Degree – a Class A-I felony which carried with it a mandatory minimum sentence of 8 years in prison. Nonetheless, his attorney was able to negotiate for him a plea bargain under which he would be convicted of only a class B felony and serve just 2 ½ years. At the plea proceeding, in addition to assuring itself generally that the plea was knowing, intelligent and voluntary, the court warned defendant that a guilty plea could “adversely affect” his immigration status. Defendant confirmed his understanding of that warning, asked for no elaboration, and accepted the favorable plea bargain. On appeal, defendant acknowledges that the holding of Padilla v. Kentucky, 130 S. Ct. 1473 (2010), pertains to a criminal defense attorney’s obligation to explain immigration consequences to a pleading client (Defendant’s Brief, p. 18). Nonetheless, defendant contends that after Padilla, deportation must now be considered a “direct” rather than a “collateral” consequence of a guilty plea, and that -14- plea courts are therefore required to inform all defendants of the specific federal immigration consequences of their pleas (Defendant’s Brief, Point I). Defendant further contends that even if immigration consequences are collateral and a general warning could have sufficed here, the warning delivered by the court was ambiguous and could have been interpreted by defendant as an assurance that he would not suffer any immigration consequences as a result of his conviction for possessing a kilogram of cocaine with intent to sell it (Defendant’s Brief, Point II). Defendant’s contentions are unpreserved for this Court’s review, and they also are singularly unpersuasive. A. It is well settled that when accepting a guilty plea, a court must assure itself that the plea is knowing, intelligent and voluntary. See, e.g., People v. Fiumefreddo, 82 N.Y.2d 536, 543 (1993). The determination whether a plea meets that standard generally rests within the sound discretion of the court accepting the plea. See Fiumefreddo, 82 N.Y.2d at 543-544. Some factors that may inform a court’s discretion are the pleading defendant’s opportunity to discuss the plea bargain with counsel and others, the strength of the case against him, and the benefit of the bargain he received. See generally People v. Francis, 38 N.Y.2d 150, 153 (1975); People v. Nixon, 21 N.Y.2d 338, 350-353 (1967). This Court has eschewed a “formalistic approach” for accepting guilty pleas, and there are very few mandatory components of a plea allocution. Fiumefreddo, 82 -15- N.Y.2d at 543; see, e.g., People v. Harris, 61 N.Y.2d 9, 19 (1983) (no requirement of a “ritualistic recitation of the rights waived upon a guilty plea”); Nixon, 21 N.Y.2d at 353 (no “uniform mandatory catechism” for guilty pleas). To be sure, a reviewing court must ensure that the plea court informed the defendant on the record of the “direct” consequences of his plea – those consequences, such as the promised sentence, that have “a definite, immediate and largely automatic effect on defendant’s punishment.” Ford, 86 N.Y.2d at 403; see People v. Harnett, 16 N.Y.3d 200 (2011); People v. Gravino, 14 N.Y.3d 546 (2010); People v. Catu, 4 N.Y.3d 242, 244 (2005). But “a criminal court is in no position to advise on all the ramifications of a guilty plea personal to a defendant.” Ford, 86 N.Y.2d at 403. It follows that a court need not inform a defendant about all the “collateral” consequences of his plea, such as those that are “peculiar to the individual’s personal circumstances” or “result from the actions taken by agencies the court does not control.” Id. Applying that definition, this Court held in Ford that “[d]eportation is a collateral consequence of conviction,” and that a trial court need not explain a defendant’s immigration consequences in the plea colloquy. Id. Padilla v. Kentucky does not purport to create any new judicial obligation for the hundreds of New York judges throughout the state presiding over thousands of guilty pleas involving citizen and non-citizen defendants alike. Indeed, the Supreme Court expressly declined to determine whether immigration consequences should be considered direct or collateral for purposes of the requirements of a valid plea -16- allocution. Instead, the Court noted that it had “never applied a distinction between direct and collateral consequences” in the entirely different context of resolving claims regarding the effectiveness of counsel. Padilla, 130 S. Ct. at 1481. This Court has thereafter continued to rely squarely on Ford’s holding that immigration matters are collateral consequences. Harnett, 16 N.Y.3d at 205-207 (citing Padilla); compare Catu, 4 N.Y.3d at 244 (post-release supervision, being part of a sentence, is a direct consequence) with People v. Gravino, 14 N.Y.3d 546 (2010) (Sex Offender Registration Act requirements are a collateral consequence) and People v Belliard, 2013 NY Slip Op 00884 (February 13, 2013) (fact that a sentence will run “consecutively to a previously imposed undischarged sentence” is a collateral consequence). Thus, as will be discussed more fully infra, immigration consequences remain collateral after Padilla, and a plea is not rendered involuntary by a court’s omission of immigration advice from the plea proceeding. B. On this record, the factors relevant to whether the plea was knowing, intelligent and voluntary, see, e.g., Francis, 38 N.Y.2d at 153, and Nixon, 21 N.Y.2d at 353-354, lead to the inescapable conclusion that it was. Perhaps most importantly, the record reveals that defendant had plenty of opportunities to discuss the case and his plea with his attorney and others. He certainly had an opportunity to discuss his immigration status with his attorney long before the plea, because his attorney revealed at the bail proceeding before a different judge that he knew about -17- defendant’s immigration status (A: 17 [Mar. 30, 2007 Procs.: 3]). Then, at the plea proceeding, defendant and his attorney were present in court for the four calls of the case during which the plea bargaining took place (A: 6-8 [Plea: 2-4]) – and defendant had to have discussed the plea then because it was during that period of time that he elected to accept the bargain. Nor was there undue pressure on defendant about pleading guilty in terms of timing. The prosecutor had agreed to keep the plea available until a hearing began, and the case was going to be adjourned for that purpose. The case was then re-called for the final time, to take the plea, because that is what both defendants wanted to do (A: 8-9 [Plea: 4-5]).3 The benefit defendant obtained from the plea bargain further establishes the voluntariness of the plea. After all, defendant admitted his factual guilt of jointly possessing with Morales over a kilogram of drugs that they intended to sell. Nonetheless, defendant was offered the chance to plead guilty to a Class B felony and obtain a 2 ½ year prison sentence for his criminal conduct. This was unquestionably a favorable plea bargain, since the mandatory minimum legal sentence is 8 years for 3 In any event, the dilemma of having to decide whether to plead guilty or proceed to adjudication is not impermissible coercion, but rather the predicament of every criminal defendant. While this predicament may not have been to defendant’s liking, it is not grounds for vacating the plea. See, e.g., Matter of Randall v. Rothwax, 161 A.D.2d 70, 75 (1st Dep’t 1990) (“Of course, the fact that the defendant perceived his options to be severely limited, would not of itself require the conclusion that the plea was coerced. Guilty pleas are almost always the product of a defendant’s understanding that his options are very narrowly circumscribed”), aff’d, 78 N.Y.2d 494 (1991). -18- the Class A-I felony that defendant effectively admitted committing. See Penal Law § 70.71(2)(b)(i). The strength of the case against defendant also sheds light on the voluntariness of his plea, as the allegations against defendant would have been very simple to prove: defendant and his associate were caught with a very large amount of drugs at their feet in a taxicab, and officers found two cellular telephones in each of their pockets as well as just $1 cash on defendant’s person to Morales’s $20. Defendant – aware of his own guilt and his association with Morales – had to expect that the People would be able to prove his joint possession of the drugs with Morales. Indeed, since defendant carried only $1, the logical inference is that he expected Morales to pay the cab fare for both of them. And, as a matter of pure common sense, a drug dealer or mule transporting thousands of dollars worth of narcotics would hardly invite an innocent companion to accompany him in the back of a taxicab on the way to the stash house or sale point. Moreover, the fact that defendant and Morales each carried two cellular telephones was incriminating on its face, even putting aside what inspection of the phone records would have revealed. Defendant thus would have to have foreseen the uphill battle in trying to raise a doubt that he and Morales were not only acquainted, but united in purpose with respect to the drugs. All these incriminating circumstances surrounding defendant’s presence in a cab with a kilogram of drugs could serve only to buttress, rather than to rebut, the statutory presumption permitting the inference -19- that someone found in a car with drugs near him knowingly possesses those drugs. See Penal Law § 220.25(1). On top of all that, it is not as if the plea court ignored immigration consequences altogether. To the contrary, even though there was no indication that defendant ever even told the plea court that he was not a citizen,4 the plea court took care to warn defendant that “if you’re not here legally or if you have any immigration issues[,] these felony pleas could adversely affect you.” Defendant assured the court that he understood this (A: 12 [Plea: 8]). Thus, even though the plea’s validity did not require that the court warn defendant about the collateral consequence of deportation, the court expressly warned defendant that his plea “could” have affected his immigration status. Defendant opted, for good reason, to accept the bargain anyway. As noted, since defendant had plenty of time to consider the bargain and it was a highly beneficial one, his acceptance of the plea deal reflected his knowing, intelligent and voluntary choice, given all the circumstances. C. Against this backdrop, defendant’s current challenges to the voluntariness of his plea do not present questions of law and are thus outside the review powers of this Court. “In order for there to be a question of law reviewable by this court, the 4 The bail hearing at which defendant’s green card was mentioned had taken place before a different judge. -20- trial court generally must have been given an opportunity to correct any error in the proceedings below at a time when the issue can be dealt with most effectively.” People v. Lopez, 71 N.Y.2d 662, 665-666 (1988); see CPL 470.05(2). Thus, to preserve an appellate attack on the validity of a guilty plea, a defendant must give the trial court a chance to correct any perceived error by moving that court to withdraw or vacate the plea. See Lopez, 71 N.Y.2d at 665 (collecting cases adhering to preservation requirement). In that light, as the Appellate Division properly held, defendant has not preserved either of his newfound arguments that the plea colloquy mandates reversal. He lodged no objection at all to the plea colloquy and he did not move to withdraw his plea. He did not give the court any opportunity to consider his current claim that, rather than providing the general warning expressly prescribed by Criminal Procedure Law Section 220.50(7), New York trial judges instead must place on the record at every plea proceeding detailed and particularized advice regarding federal immigration law. He likewise did not give the court any opportunity to consider his current argument that the general warning the court gave him might have been interpreted as an assurance that defendant would suffer no immigration consequences, rather than as a warning that he probably would. And he has never sought to expand the record in an attempt to establish that he was in fact misled by the court’s warning. Simply put, defendant did nothing to alert the trial court to his current challenges to the validity of his plea, so his claims are unpreserved. -21- Not surprisingly, defendant does not even suggest that he preserved his current claims, arguing instead that challenges to a guilty plea simply do not require preservation (Defendant’s Brief, pp. 28-29). In support of that argument, defendant offers language from People v. Seaberg, 74 N.Y.2d 1 (1989), and People v. Francabandera, 33 N.Y.2d 429 (1974). But Seaberg discusses whether the right to appeal may be waived, and Francabandera discusses appealability; neither case says a word about preservation. As noted, it is Lopez and its progeny that address preservation, and they leave no room for doubt that preservation generally is required for a challenge to the validity of a guilty plea like the one at issue here. To be sure, Lopez contemplates a “rare” exception to the preservation requirement when a defendant’s own statements during a guilty plea negate an element of the crime or affirmatively cast doubt upon the voluntariness of his plea. 71 N.Y.2d at 665-666; People v. McNair, 13 N.Y.3d 821, 823 (2009) (relying on Lopez). But those factors are not present here. In Lopez, the defendant, facing a murder charge, pleaded guilty to first degree manslaughter, which included an element of intent to cause serious physical injury. When asked to admit the conduct underlying his guilty plea, however, the defendant at one point denied harboring an intent to hurt the victim and implied that he had been justified. In response, the trial court inquired further of the defendant on those topics until it was satisfied that he harbored the requisite intent and was not justified. Lopez “raised no further objection” to the -22- court’s supplemental inquiry and did not thereafter move to withdraw or vacate the plea. Lopez, 71 N.Y.2d at 666. On appeal to this Court, Lopez attacked the validity of the plea and contended that his denial of intent and invocation of justification relieved him of the need to preserve his appellate claim. This Court agreed that an exception to the preservation requirement should exist if a trial court overlooks a defendant’s factual recitation at the plea proceeding that “clearly casts significant doubt upon the defendant’s guilt or otherwise calls into question the voluntariness of the plea.” Lopez, 71 N.Y.2d at 666. Yet once a trial court responds to such a defendant’s concerns with further inquiry as it did in Lopez, it again becomes incumbent upon the defendant to raise any further objections or move to withdraw or vacate the plea. Id. at 666-667; see McNair, 13 N.Y.3d at 823 (same). In other words, absent the “rare” situation where a defendant’s own assertions call the validity of his plea into question and the court does nothing about it, the rule is that “the claim of an invalid guilty plea must be appropriately preserved.” People v. Clarke, 93 N.Y.2d 904 (1999); see People v. Boyd, 12 N.Y.3d 390, 395 (2009). Accordingly here, where the rare circumstance described in Lopez is absent, defendant’s challenges to the voluntariness of a guilty plea may be reviewed only if preserved by a specific objection in the trial court. Boyd, 12 N.Y.3d at 395. Defendant also cites People v. Louree, 8 N.Y.3d 541 (2007), for the proposition that preservation should not be required because he could not have known of the court’s mistake until after he was sentenced. In Louree, the court omitted to recite -23- during the defendant’s plea proceeding the direct consequence of post-releaase supervision (“PRS”), a component of the sentence promise; Louree did not move to withdraw the plea, and the court imposed PRS at sentencing. Louree then appealed, and this Court found that preservation was not required due to the “actual or practical unavailability of either a motion to withdraw the plea under CPL 220.60(3), or a motion to vacate the judgment of conviction under CPL 440.10” in such cases. 8 N.Y.3d at 546. In that regard, the Court explained that Louree could not have moved to withdraw the plea based on the court’s failure to inform him of PRS because the trial judge did not even “mention” it until it was imposed – too late to make a pre- sentencing plea withdrawal motion. And, once the PRS was imposed, its complete omission from the colloquy was plain from the record and thus not the proper subject of a 440.10 motion. Id. But the logic of Louree does not help defendant one whit. Indeed, Louree’s reasoning dictates that here, defendant was required to register his complaint. After all, the potential for adverse immigration consequences was mentioned during defendant’s plea, so any complaint with the court’s treatment of that issue could have been raised before sentencing. And because immigration consequences were mentioned during the plea allocution, it was up to defendant to inform the court of any perceived infirmity in the warning. Instead, defendant merely confirmed in open court that he understood the warning. Accordingly, since preservation was required and defendant did not preserve his claim, this Court cannot review it. -24- Finally, this Court should not expand the narrow preservation exception from Lopez and Louree to include cases like defendant’s. Here, defendant’s attorney knew that defendant was not a citizen, the court expressly referenced immigration consequences by conveying a general warning to defendant, and defendant had plenty of time to ask the court or his attorney for more information if that was important to his pleading calculus. Indeed, one of defendant’s appellate arguments (Defendant’s Brief, Point II) rests on his assertion not that nothing was said to him and therefore he could not have been expected to know he should complain, as in Louree, but rather that something was said to him and it could have been interpreted it in a particular way. This is precisely the sort of claim for which the preservation rules make the most sense – any ambiguity could have been cleared up by the court with no trouble at all if only defendant had cared to ask. See, e.g., People v. Thomas, 50 N.Y.2d 467, 472 (1980) (where claim was not that the court’s charge actually shifted the burden of proof, but that “a portion of the court’s charge is capable of being so interpreted and having this effect,” preservation was required). D. Even if this Court had the power to review defendant’s claims that Padilla v. Kentucky imposes new burdens upon state trial judges and that the particular warning delivered here was infirm, defendant’s arguments fail on the merits. The Appellate Division correctly concluded that the court was not required to provide more -25- comprehensive immigration advice, and the general warning it did provide could not have led defendant to a false impression that he was immune to deportation. 1. After Padilla v. Kentucky, immigration consequences remain collateral for purposes of determining the validity of a plea colloquy, and state trial judges are not required to place particularized immigration advice on the record of every guilty plea. Defendant contends that immigration consequences can no longer be considered “collateral” in light of the Supreme Court’s holding in Padilla v. Kentucky (Defendant’s Brief, pp. 18-21) and the increasingly mandatory nature of deportation under current federal law (Defendant’s Brief, pp. 22-25). But as noted, this Court has expressly held that the effect of a conviction on a defendant’s immigration status is a “collateral” consequence of his plea, and that courts are not required to make a record of immigration consequences as part of every plea proceeding. Ford, 86 N.Y.2d at 403-405. This is so because “a criminal court is in no position to advise on all the ramifications of a guilty plea personal to a defendant.” Id. at 403. As a result, courts are required to advise pleading defendants only of “direct” consequences, which have a “definite, immediate and largely automatic effect on defendant’s punishment,” and not collateral ones that “are peculiar to the individual and generally result from the actions taken by agencies the court does not control.” Immigration status is a collateral consequence “because it is a result peculiar to the individual’s personal circumstances and one not within the control of the court system.” Id. Moreover, even after Padilla and the tightening of federal immigration law, this Court recently reaffirmed Ford’s principled distinction between direct and collateral -26- consequences. In People v. Harnett, finding that potential incarceration pursuant to the Sexual Offender Management and Training Act was a collateral consequence of a guilty plea, the Court explained: The direct consequences of a plea – those whose omission from a plea colloquy makes the plea per se invalid – are essentially the core components of a defendant’s sentence: a term of probation or imprisonment, a term of postrelease supervision, a fine. Our cases have identified no others. We held in Ford and [People v. Gravino, 14 N.Y.3d 546 (2010)] that consequences that may be quite serious – possible deportation in Ford, Sex Offender Registration Act (SORA) requirements and onerous terms of probation in Gravino – are collateral. Harnett, 16 N.Y.3d at 205-206. In short, consequences that are “peculiar to the individual’s personal circumstances” and “not within the control of the court system” – even though very significant and highly likely to occur – remain collateral and need not be explained by the court as a prerequisite to a valid plea. Ford, 86 N.Y.2d at 403; accord People v. Belliard, 2013 NY Slip Op 00884 (Feb. 12, 2013) (quoting Ford). Nor did Padilla purport to classify immigration consequences as direct or collateral for purposes of guilty pleas. Indeed, the Supreme Court did not address the question of whether immigration consequences should be considered direct or collateral, let alone how such a distinction might inform review of a plea colloquy. To the contrary, the Court noted that it had “never applied a distinction between direct and collateral consequences” in the distinct context of determining the effectiveness of counsel. Padilla, 130 S. Ct. at 1481. This Court has thereafter continued to rely -27- squarely on Ford’s holding that immigration matters are collateral consequences. Harnett, 16 N.Y.3d at 205-207 (citing Padilla); compare Catu, 4 N.Y.3d at 244 (post- release supervision, being part of a sentence, is a direct consequence) with People v. Gravino, 14 N.Y.3d 546 (2010) (Sex Offender Registration Act requirements are a collateral consequence). Immigration consequences thus remain collateral after Padilla, and a court need not explain them during a plea proceeding in order for the plea to be knowing, intelligent and voluntary. Nonetheless, defendant misreads Padilla as extending to the plea court an attorney’s obligation to explain immigration consequences. Such a requirement would blur the differing roles of the court and defense counsel; it could even infringe a defendant’s rights, albeit perhaps unwittingly. After all, it is the defense attorney and not the court who owes a singular duty to the client, and who should communicate candidly with a defendant about his individual situation and the particular concerns that matter most to him. Defendants may not wish to divulge to courts all the circumstances and concerns they have discussed with counsel. A court’s earnest effort to provide accurate immigration advice could have the dangerous consequence of intruding upon this confidential relationship. That distinct possibility, coupled with the impracticalities of charging judges with the responsibility not only to determine the citizenship status of every pleading defendant but also the precise immigration consequences that pertain, is good reason to leave the matter in the hands of the defendant’s lawyer. See, e.g., People v. Contant, 77 A.D.3d 967, 969 (2nd Dep’t 2010) -28- (court’s general reference to immigration consequences, even if imperfect, “provided an opportunity to pursue those consequences more fully with his attorney or with an immigration specialist”). In short, Padilla cannot be read as requiring states to classify immigration consequences as direct instead of collateral, or to require courts to explain immigration consequences with the same level of precision as counsel must. And defendant has offered no basis in law or logic for the Court to abandon Ford. As noted, consequences are deemed collateral when “important decisions and recommendations must be made, after the time of the guilty plea, by administrative agencies not under the court’s control.” Harnett, 16 N.Y.3d at 206. Immigration consequences fit that bill to a tee. The reason for this is that, however likely it is that a federal immigration court will ultimately order a defendant deported, United States Immigrations and Customs Enforcement (“ICE”) is an agency outside the control of New York courts. It is ICE, acting on federal law in the federal courts, that makes the decision to bring deportation proceedings. Moreover, ICE exercises discretion in deciding whether to bring deportation proceedings. As noted in connection with ICE’s predecessor, Immigration and Naturalization Services (“INS”), “‘Prosecutorial discretion’ is the authority of an agency charged with enforcing a law to decide whether to enforce, or not to enforce, the law against someone. The INS, like other law enforcement agencies, has prosecutorial discretion and exercises it every day.” Doris Meissner, Commissioner, -29- Immigration and Naturalization Service, Memorandum to Regional Directors et al., Nov. 17, 2000.5 Ironically, anti-immigration commentators have long complained that the policy permitting prosecutorial discretion has allowed too many deportable aliens to remain in the United States. See, e.g., Debbie Schlussel, ICE’s Illegal Alien La Leche League: Forget Catch & Release, Meet Catch & Re . . . Lactate? (Nov. 13, 2007 blog entry)6; Terence P. Jeffrey, Meissner’s Gift to Criminal Aliens (Jan. 27, 2003 blog entry).7 Even though today’s immigration laws are undoubtedly tougher than those of the past, ICE continues the longstanding tradition of exercising some prosecutorial discretion in enforcing them. On June 17, 2011, ICE Director John Morton issued an internal memorandum explaining the policy still in effect well after the time of defendant’s plea. John Morton, Director, United States Customs and Immigration Enforcement, Memorandum to Field Office Directors et al., June 17, 2011.8 In that memorandum, Morton recognized the employment of prosecutorial discretion in 5 Available at http://iwp.legalmomentum.org/reference/additional- materials/immigration/enforcement-detention-and-criminal-justice/government- documents/22092970-INS-Guidance-Memo-Prosecutorial-Discretion-Doris-Meissner-11-7- 00.pdf (accessed February 14, 2013). 6 Available at http://www.debbieschlussel.com/3113/exclusive-ices-illegal-alien-la- leche-league-forget-catch-release-meet-catch-re-lactate (accessed February 14, 2013). 7 Available at http://www.humanevents.com/article.php?id=323 (accessed February 14, 2013). 8 Available at http://www.ice.gov/doclib/secure-communities/pdf/prosecutorial- discretion-memo.pdf (accessed February 14, 2013). -30- deciding whether to enforce immigration laws against particular individuals as dating back at least 35 years, and explained that in light of the limited resources available to ICE, it would be impossible to bring actions against all deportable aliens. In light of the way immigration policy is selectively enforced, in fact, immigration is more collateral a consequence than the largely automatic ramifications of the New York State Sexual Offender laws that have also been deemed collateral. See Harnett, 16 N.Y.3d 200 (SOMTA); Gravino, 14 N.Y.3d 546 (SORA). In conclusion, mandatory deportation is not at all a “direct” consequence of a New York state guilty plea. Immigration consequences imposed by a federal agency applying federal law are not even remotely like the automatic, direct consequence of, for example, PRS – a component of a New York criminal sentence prescribed by New York statutes. A conviction of certain New York crimes may of course leave a defendant with no defense to a federal removal proceeding, but there are still several factors outside the state court’s control that can affect what actually happens to that defendant. For example, ICE must first learn of the defendant’s status as a deportable alien; ICE is then free to exercise its prosecutorial discretion as to whether to institute proceedings; and ICE does not have sufficient resources to enforce the law against everyone who is subject to it Thus, Padilla v. Kentucky merely requires criminal attorneys to explain to defendants the precise effect a guilty plea will have from a federal immigration standpoint. It does not make deportation, however onerous and however likely to -31- occur, a “direct” consequence of a guilty plea that must be addressed by the trial court in order for the plea to be knowing, intelligent and voluntary. The fact remains that ICE is an outside agency over which the state court has no control and the potential immigration consequences turn entirely on the personal circumstances of the non- citizen defendant. Those factors make deportation proceedings the very definition of collateral, and this Court should not craft a new rule requiring plea courts to provide legal advice about collateral consequences. 2. On this record, the court’s immigration warning was appropriate. Defendant argues in the alternative that, even reaffirming the longstanding rule that immigration consequences are collateral, his plea was still invalid. In defendant’s opinion, the court’s immigration warning – that “if you’re not here legally or if you have any immigration issues[,] these felony pleas could adversely affect you” (A: 12 [Plea: 8]) – so differed from the wording of Criminal Procedure Law Section 220.50(7) that it actually “suggested that he would not be deported” (Defendant’s Brief, p. 30).9 To begin, contrary to defendant’s assumption, the court’s warning that if defendant had “any immigration issues” then a plea “could adversely affect” him was remarkably similar to the statutorily prescribed language “that if the defendant is not a citizen of the United States, the defendant’s plea of guilty and the court’s acceptance 9 CPL § 220.50(7) requires a warning “that if the defendant is not a citizen of the United States, the defendant’s plea of guilty and the court’s acceptance thereof may result in the defendant’s deportation.” -32- thereof may result in the defendant’s deportation.” CPL § 220.50(7); see also Zhang v. United States, 506 F.3d 162, 164 (2nd Cir. 2007) (statements that a defendant subject to mandatory deportation “faced possible, rather than certain, deportation … were not affirmatively misleading or prejudicial”). By any measure, the court’s reference to “immigration issues” was fairly equated with lack of citizenship. Thus, defendant’s acknowledgment that the statutory language would sufficiently have alerted him to the need to consider immigration consequences (Defendant’s Brief, p. 33) cannot be squared with his assertion that the court’s similar warning had the opposite effect. Notwithstanding the similarity between the court’s warning and the statutory provision, defendant portrays the court’s warning as a gratuitous false assurance that defendant would suffer no immigration consequences at all as a result of his guilty plea. To that end, defendant notes that the court warned him that if he were “not here legally” or if he had “any immigration issues,” then a plea “could adversely affect” him (A: 12 [Plea: 8]). According to defendant, since he had a green card and purportedly had no immigration “issues” in his own mind, he “could reasonably have drawn from the court’s statement” that the immigration warning did not apply to him at all (Defendant’s Brief, pp. 31). Of course, the Appellate Division unanimously rejected the strained argument that the court’s warning could have misled defendant into believing that he need not concern himself with fallout from federal immigration authorities. Indeed, the argument flies in the face of reason. Any non-citizen defendant facing a Class A-I -33- felony narcotics charge – even a non-citizen defendant with a green card who wished to remain in the country – would have appreciated that the indictment alone posed a very serious immigration issue indeed. And once defendant elected to enter a plea of guilty to knowing possession of a large quantity of an illicit drug with intent to sell it, there is no likelihood at all that defendant concluded that the court was either not talking to him or was assuring him that he need not fear any immigration consequences at all. Put differently, any alien defendant considering a felony plea who cares about remaining in this country, warned point-blank that if he has “immigration issues” his plea might “adversely affect” his immigration status, would be expected either to assume the worst or to ask for clarification of the warning. He would most certainly not be expected to assume that the court’s explicit mention of immigration was irrelevant to him. Defendant also suggests that Section 220.50(7) is unconstitutional insofar as it provides that the failure of a plea court to give the immigration warning “shall not be deemed to affect the voluntariness of a plea of guilty or the validity of a conviction.” But that argument stands or falls on defendant’s related claim that immigration concerns are a direct consequence of a plea that must be spelled out by a court in order for the plea to be valid. Because, as a legal matter, this Court has squarely resolved that any such concerns are collateral, the statute simply memorializes the unremarkable notion that the mere fact of a court’s failure to warn of a collateral consequence does not affect the voluntariness of a defendant’s plea. -34- None of this is meant to suggest that a defendant would be without recourse were the trial court affirmatively to misinform him of a collateral consequence. In fact, this Court has expressly recognized the possibility that collateral consequences can be relevant to the validity of a plea, explaining that: [t]here may be cases in which a defendant can show that he pleaded guilty in ignorance of a consequence that, although collateral for purposes of due process, was of such great importance to him that he would have made a different decision had that consequence been disclosed. Gravino, 14 N.Y.3d at 559. Thus, a particular defendant’s actual ignorance of an important collateral consequence like deportation could well, in some narrow circumstances, render that defendant’s plea invalid. As Gravino makes clear, however, in such a case the plea is not automatically deemed invalid solely due to the court’s failure to mention the collateral consequence. Instead, there would have to be some showing that – due to the court’s misinformation or otherwise – defendant was ignorant of the consequence and that proper knowledge would have affected his decision whether to plead guilty. Conversely, it would be patently unfair if a non-citizen who knew all the contours of potential immigration consequences could upset his conviction solely because a court neglected to tell him something that he already knew. Indeed, the challenged provision of Section 220.50 is most sensibly construed thus: that the court’s omission of the prescribed warning about immigration consequences – which -35- are collateral – is not automatically “deemed” fatal to the validity of a plea, as would be the omission to mention a direct consequence.10 3. Defendant should not be permitted to relitigate fact findings that are not before this Court. Finally, defendant concludes his brief with the stunning factual assertion that “even if this Court concludes that the failure to warn a defendant that his guilty plea may result in deportation does not always invalidate a noncitizen’s guilty plea, it should still reverse Mr. Diaz’s conviction because he pleaded guilty in ignorance of a consequence that was of such great importance to him that he would have made a different decision had that consequence been disclosed” (Defendant’s Brief, pp. 34- 35) (internal quotations omitted). Needless to say, that bald factual assertion has no place in an appellate brief, much less in one filed as part of a direct appeal to this Court. It bears note, however, that defendant made a similar factual assertion in a Criminal Procedure Law Section 440.10 motion directed to the effectiveness of his attorney. The issue in that collateral attack was resolved against defendant when the plea court determined that notwithstanding counsel’s advice to defendant that he would probably, as opposed to definitely, be deported, defendant would have pleaded 10 The legislative history of Criminal Procedure Law Section 220.50 focused primarily on sentencing and correctional reform, but the Governor’s brief reference to Section 220.50(7) comports with the constitutional construction. Specifically, the Governor interpreted the statute to mean that the “[f]ailure to give this warning does not invalidate the plea or confer any rights upon the defendant.” L. 1995 ch. 3, § 30 [Governor’s Memorandum, p. 4]. In other words, omission of the statutory warning does not create a constitutional error that renders the plea invalid per se, but there is also no basis to conclude that the provision affirmatively protects any plea that is otherwise infirm. -36- guilty anyway. In other words, even with perfect advice, defendant would not have made a different decision about his plea. Defendant’s application for leave to appeal from that ruling was denied, and therefore it is not before this Court. Nor should it be, because the plea court’s factual findings about what defendant was told and whether he was prejudiced are not questions of law appropriate for this Court’s review, given the posture of the 440.10 proceedings. This Court should not entertain defendant’s implicit bid to second guess factual findings that are not even before it. Similarly, defendant makes much throughout his brief of the fact that deportation proceedings have actually been brought against him, and that if his conviction stands, he will in fact be deported (see, e.g., Defendant’s Brief, pp. 20-21). That may be so, although ICE presumably still retains the discretion to drop the proceeding against him, unlikely as that may be. But whatever ICE chooses to do from here, there was no proceeding yet at the time of the plea, when defendant undertook the risk of the consequences about which he was warned. Given that ICE could have chosen not to enforce the immigration law to deport defendant, the court’s advice was not misleading at all; the court very generally yet accurately warned defendant that the plea “could” have consequences, and that was in fact the case. Defendant chose to assume the risk of the adverse result, and it was only after that risk came to fruition – and deportation proceedings were actually brought against defendant – that he first articulated his earlier complaint against his attorney and his current complaint against the judge. Defendant pleaded guilty voluntarily, obtaining a -37- great bargain in exchange for accepting the risk that he would be deported. His dissatisfaction with the fact that ICE ultimately sought to deport him is understandable, but that does not undermine the validity of the beneficial plea bargain struck before anyone knew for certain what action an independent federal agency would undertake. * * * In sum, defendant has not preserved his attack on his plea. In any event, the court was not required to provide a detailed immigration warning because immigration consequences are collateral. The court most certainly did not provide incorrect advice. Defendant’s plea was the result of his valid choice among the alternatives available to him, and it should be upheld. -38- CONCLUSION The order of the Appellate Division should be affirmed. Respectfully submitted, CYRUS R. VANCE, JR. District Attorney New York County danyappeals@dany.nyc.gov by: _______________________ Vincent Rivellese Assistant District Attorney Hilary Hassler Vincent Rivellese Assistant District Attorneys Of Counsel February 14, 2013