The People, Respondent,v.Natalio Pastor, Appellant.BriefN.Y.Dec 14, 20161 OFFICE OF THE DISTRICT ATTORNEY, Bronx County DARCEL D. CLARK 198 East 161st Street (718) 838-7091 District Attorney Bronx, New York 10451 Fax 590-6523 November 7, 2016 The Honorable Judges of the Court of Appeals Court of Appeals 20 Eagle Street Albany, NY 12207-1095 Re: People v. Natalio Pastor APL-2016-00162 Your Honors: The People submit this letter in opposition to defendant’s submission in the above-referenced appeal, the merits of which this Court has designated for summary review under Rule 500.11 of the Court’s Rules of Practice. PRELIMINARY STATEMENT By permission of the Honorable Sallie Manzanet-Daniels, Justice of the Appellate Division, First Department (hereinafter “Appellate Division”), defendant appeals from an order of the Appellate Division rendered on February 11, 2016, which affirmed, by a three justice majority, a judgment of the Supreme Court, Bronx County (Boyle, J), convicting defendant Natalio Pastor, upon his plea of 2 guilty, of Assault in the Second Degree (Penal Law § 120.05) and sentencing him to a definite term of nine months in jail. Defendant claims that his plea was invalid because (1) when his attorney allegedly misadvised him about the immigration consequences of his plea, the court did not correct that misadvice, and (2) the plea court did not sua sponte question him about a possible justification defense that defendant raised to a probation officer who included it in the pre-sentence report. Contrary to defendant’s assertions, the Appellate Division correctly rejected defendant’s claims. STATEMENT OF FACTS THE PLEA On September 20, 2011, defendant pled guilty, with the assistance of counsel and a Spanish language interpreter, to Assault in the Second Degree. After the plea court confirmed with the People the terms of their offer, and defense counsel consented to the case being held for Grand Jury action, it addressed defendant. The court asked defendant if he had read the Superior Court Information (“SCI”) and discussed its contents prior to signing it in open court. Defendant said yes (P. 2-3). The court then confirmed with defendant that he understood the following: (1) he was giving up his right to be prosecuted by an indictment filed by a Grand 3 Jury; (2) he was consenting to being prosecuted by the SCI filed by the People; (3) he was giving up his right to testify before the Grand Jury and to request that the Grand Jury hear witnesses; (4) the SCI had the same force and effect as an indictment filed by the Grand Jury. And finally, the court asked defendant again whether he had had enough time to consult with his attorney and whether he was sure he wanted to waive his right to be prosecuted by indictment. Defendant indicated that he understood all of the court’s warnings, and consequently, the court concluded that the waiver had been knowingly and intelligently executed (P. 3-4). Thereafter, defendant, through counsel, withdrew the previously entered plea of not guilty, and pled guilty to Assault in the Second Degree with the understanding that he would be sentenced to nine months of incarceration. After confirming with defendant that he understood what his attorney had just said, the court told defendant that it was going to ask him a number of questions, but if he wanted to speak with his attorney before answering them, he would be given time to do so. The court also added that it would clarify anything defendant did not understand. Again, the court confirmed with defendant that he had spoken with his attorney about his case and pleading guilty and that he was satisfied with the services of his attorney (P. 4-5). 4 At that point, the court asked defendant whether he understood the following: (1) that by pleading guilty he was giving up the right to remain silent and not incriminate himself; (2) that he was admitting that on August 21, 2011, at approximately 11:30 p.m., in Bronx County, he intended to cause physical injury to Elsalme Alejandro and caused physical injury to that person by means of a sword; (3) that he was giving up certain constitutional rights, including the right to move to suppress evidence, the right to a trial by jury or non-jury, the right to be represented by an attorney, the right to confront and cross-examine witnesses called by the People to testify against him; (4) that at trial he would be presumed innocent until proven guilty beyond a reasonable doubt, to a unanimous jury of twelve people. Defendant indicated unequivocally that he understood all of this (P. 5-8). The court then explained that a conviction by a guilty plea had the same legal effect as a conviction after a trial, and that if he was not a citizen, he could face deportation or denial of his naturalization as a result of the plea. Defendant once again said that he understood each of these consequences (P. 8). After this string of questions and answers between the court and defendant, defense counsel said, “Judge, I want to put on the record that although I fully discussed the consequences of this plea with my client, although it is not relevant to this case” (id.). 5 The court, continuing its litany of consequences to defendant’s plea, informed him that if he was subsequently convicted of another felony, he would face substantially increased sentencing for that future felony. Defendant said he understood that as well (P. 8). Thereafter, the court discussed defendant’s waiver of his right to appeal, confirming that defendant understood that this waiver was a specific condition of this particular plea, and that he had discussed the written waiver with his attorney. The court also made clear that the constitutional rights defendant was waiving were distinct from his right to appeal (P. 9). Next, the court verified that defendant understood the promised sentence of nine months in jail and a permanent order of protection on behalf of the complainant, and that no other promises had been made (id.). And finally, defendant assured the court that he had understood everything the court had said, that he had not been threatened or coerced into taking the plea, and that he was certain that he was entering the plea voluntarily and of his own free will. Thereafter, the court agreed to accept the plea and adjourned the case for sentence (P. 9-10). THE SENTENCE On October 5, 2011, defendant was sentenced with the assistance of an attorney and a Spanish language interpreter. First, the court confirmed the terms of 6 the plea, then asked if defendant was ready for sentence. When defense counsel said yes, the court clerk arraigned defendant for sentence, giving the People, defense counsel, and defendant an opportunity to be heard. The People asked that the promised sentence be imposed, and neither defense counsel nor defendant had anything to add (S. 2). Thereafter, the court, indicating that it had read the probation report, imposed the promised sentence of nine months in jail and a permanent order of protection (S. 3). DEFENDANT’S APPEAL TO THE APPELLATE DIVISION On appeal before the Appellate Division, First Department, defendant argued that the court erred in failing to ask him about a possible justification defense after reading the pre-sentence report [“PSR”], and that his plea was invalid because the court, after warning defendant that his plea might result in deportation, did not correct defense counsel who said that he had “discussed the consequences of this plea with my client, although it is not relevant in this case.” In response, the People asserted that defendant’s claims were unpreserved, as defendant made no motion to withdraw his plea pursuant to CPL 220.60(3), or motion to vacate judgment of conviction pursuant to CPL 440.10. Defendant did not make any remarks during his plea allocution that would cast doubt upon the validity of his plea. Defendant’s claim in the PSR, that his victim had tried to hit 7 him, was a self-serving post-plea statement that was irrelevant, and did not trigger the court to conduct a further inquiry. As to his attorney’s statement regarding the consequences of the plea, the People argued that claim is not reviewable on direct appeal because it turns on matters outside the record, but to the extent that the existing record permits review, defendant failed to demonstrate that counsel provided improper advice. Further, the plea court satisfied its duty pursuant to People v. Peque, 22 NY3d 168 (2013), to warn defendant of the potential deportation consequences of his plea, and had no further obligation or basis to undermine defense counsel’s statements. The Appellate Division considered and rejected both of defendant’s arguments and held that the judgment of the Supreme Court, Bronx County should be affirmed. The court ruled that defendant’s claims were unpreserved and did not come within the exception to the preservation requirement. People v. Pastor, 136 AD3d 493, 493 (1st Dept 2016). Regarding defendant’s statement in the PSR, the court noted that during the plea allocution itself, defendant did not say anything that either negated any element of the crime or raised a justification defense. Without a motion to withdraw the plea, the court had no obligation to conduct a sua sponte inquiry into defendant’s presentence report statement. Id. 8 Regarding the immigration effects of his plea, the Appellate Division ruled that the trial court properly notified defendant, pursuant to Peque, that if he was not a citizen, his plea may result in deportation. Id. The dissent focuses on the portion of defense counsel's statement, which was made following the court's immigration warning, that “it is not relevant to this case,” and argues the court should have “rectified” the misstatement. However, nothing in the record shows this was a misstatement. Defendant was not here legally, and counsel’s statement could have been based on the fact that defendant was subject to removal for other reasons, which would have made the deportation consequences of this plea irrelevant. It also is possible counsel made this statement because defendant was prepared to plead guilty despite any potential immigration consequences of this plea. In any event, on this record, we do not know exactly what counsel was thinking, but it is not correct to characterize this as incorrect legal advice. Peque does not require that the court ascertain more information about counsel’s discussions with defendant. Rather, it mandates that the court give defendant the appropriate warning. . . . To the extent that defendant is suggesting his attorney gave him misadvice, his remedy, if any, is to file a CPL 440.10 motion. Id. at 494. Justice Sallie Manzanet-Daniels dissented, arguing that the court should have followed up with defense counsel to clarify and rectify the statement. ARGUMENT Defendant’s claims are unreviewable, and, in any event, his plea was valid. Defendant claims that the plea court, in not responding to counsel’s statement after it provided Peque warnings, left defendant with an inaccurate understanding of the immigration consequences of his plea. He further claims that 9 the statement in his PSR negated an element of the crime and cast doubt upon his guilt and the voluntariness of his plea. Defendant’s claims are unreviewable, and in any event, the court satisfied its obligations pursuant to Peque and the meaning of counsel’s statement is not reviewable on direct appeal. The sentencing court had no duty to question defendant about his statements in the PSR which, even if true, were not grounds for a justification defense. For these reasons, to the extent the claims are unreviewable, this appeal should be dismissed; in the alternative, and the decision of the Appellate Division should be affirmed. Defendant claims that his attorney allegedly misadvised him about the immigration consequences of his plea, and that the court adopted that misadvice by failing to interject after a remark by defense counsel. Defendant neither moved to withdraw his plea nor filed a motion to vacate his conviction pursuant to CPL 440.10. Therefore his claims are unpreserved. People v. Peque, 22 NY3d 168, 182 (2013). Further, as correctly noted by the Appellate Division, “nothing in the record shows [that counsel’s statement] was a misstatement.” Pastor, 136 AD3d at 494. Defense counsel was in a much better position to assess defendant’s risk of deportation (and willingness to take that risk), having had confidential off-the- record discussions with defendant. There is not enough information in that one sentence, which did not even mention immigration, without turning to speculation, 10 to determine what he meant. Perhaps after discussing all the consequences, both immigration or non-immigration, with his attorney, defendant told counsel that he still wanted to take the plea, and that it was more important for him to receive a shorter jail sentence. The record does not reflect the conversation defendant and his attorney had before his plea, and without that context, it is impossible to say with certainty what defense counsel meant when he made that comment. Accordingly, on the existing record, the statement cannot be characterized as misadvice, and the court cannot be expected to correct something about which it has no knowledge. The court was not required to sua sponte disagree with an attorney’s advice to his client, particularly when that advice was based upon information that is not available to the court. “In any event, on this record, we do not know exactly what counsel was thinking, but it is not correct to characterize this as incorrect legal advice. Peque does not require that the court ascertain more information about counsel's discussions with defendant. Rather, it mandates that the court give defendant the appropriate warning.” Id. Because counsel’s statement relies on facts outside the record, defendant’s claim is not reviewable on direct appeal, and as noted by the Appellate Division, defendant has not shown that counsel provided incorrect advice. People v. Santer, 30 AD3d 1129 (1st Dept 2006) (defendant’s ineffective assistance of counsel, which turned on matters 11 outside the record, including counsel’s specific advice to defendant concerning the immigration consequences of his plea, was not reviewable on direct appeal). The plea court fulfilled its responsibilities pursuant to Peque, apprising defendant of the possible deportation consequences of his plea and confirming his understanding. The court’s duties have not been expanded to include rebutting defense counsel’s remarks about a defendant’s immigration status, nor is it reasonable to expect a court to do so. The cases cited by defendant are not to the contrary. In People v. Diaz, a companion case to Peque, the court gave inaccurate advice to the defendant, suggesting that the plea would only entail adverse immigration consequences for someone who was in the country illegally or had existing immigration issues. 22 NY3d at 183. Similarly, in People v. Belliard, 135 AD3d 437, 438 (1st Dept 2016), “[d]espite an additional reference to ‘immigration consequences,’ the court did not advise defendant that if he was not a United States citizen, he could be deported as a result of his plea, as required under People v. Peque.” Here, the court added no such conditions to its warning, unambiguously telling defendant that if he was not a citizen he might face deportation or denial of his naturalization application. People v. Corporan, 135 AD3d 485 (1st Dept 2016) is also distinguishable. There, “defendant was deprived of effective assistance when his counsel undermined the court's warning and understated the potential for 12 deportation by remarking that the plea would ‘not necessarily’ result in deportation, and that defendant only ‘might be deported,’” when “it was clear that defendant's plea of guilty to an aggravated felony triggered mandatory deportation under federal law.” Unlike in Corporan, where the record made obvious that counsel’s statement was false, here the accuracy of counsel’s statement was not a matter of record. The court has no duty to undermine defense counsel’s immigration advice when the accuracy of the advice is not apparent from the record. Because counsel’s statement involved facts not on the record, defendant’s potential remedy is a motion pursuant to CPL 440.10, rather than a direct appeal, and no further review by this Court is warranted. Defendant next argues that the court failed to advise him about a justification defense based on his statement to a probation officer as relayed in his PSR. Once again, this claim was unpreserved. “In order to preserve a challenge to the factual sufficiency of a plea allocution there must have been a motion to withdraw the plea under CPL 220.60(3) or a motion to vacate the judgment of conviction under CPL 440.10.” People v. Lopez, 71 NY2d 662, 668 (1988); see also, People v. Toxey, 86 NY2d 725 (1995) (defendant’s contention that his plea allocution was insufficient because the court failed to inquire about an alleged colloquy flaw was unpreserved because he did not raise the issue with the trial 13 court by motion to withdraw his plea or vacate the judgment of conviction). Defendant did not raise the issue with the trial court in any manner. There was no motion to withdraw his plea pursuant to CPL 220.60(3), or motion to vacate judgment of conviction pursuant to CPL 440.10. Therefore, the issue is unpreserved. See, People v. Rivera, 235 AD2d 372 (1st Dept 1997) (defendant’s contention that his plea allocution was insufficient because the court failed to inquire about a possible justification defense was unpreserved). To be sure Lopez, 71 NY2d 662, created a narrow exception to the preservation requirement, but it is not applicable here. It only applies in those “rare” cases “where the defendant’s recitation of the facts underlying the crime pleaded to clearly casts significant doubt upon the defendant’s guilt or otherwise calls into question the voluntariness of the plea.” Id. at 666. In those cases, “the trial court has a duty to inquire further to ensure that defendant’s guilty plea is knowing and voluntary.” Id. In Lopez, the defendant argued that his plea allocution was deficient because, during that allocution, he made remarks that negated an essential element of the charge to which he was pleading guilty, manslaughter in the first degree (Penal Law § 125.20). His responses to the plea court’s questions indicated that he might not have intended to cause serious physical injury – an element of manslaughter in the first degree – and that he was attempting to defend himself 14 against a knife-wielding aggressor. Reacting to these answers, the court inquired further to ensure the validity of the plea, and found, based on the expanded allocution, that defendant possessed the requisite intent. That is not what happened in this case. During his plea allocution, defendant neither said anything to negate any element of the crime, nor raised a justification defense. There was no motion to withdraw his plea. When given an opportunity to speak at his sentencing, defendant said nothing [S. 2]). Based upon the factual allocution, the court accepted defendant’s plea, and there was no need for further inquiry. Defendant cites no authority for the proposition that statements in the PSR should trigger a duty in the court to inquire. Lopez and its progeny, in determining whether a court’s duty to inquire further was triggered, only considered what happened during the plea proceeding itself, not the entire record on appeal. Defendant does not cite a single case where a PSR prompted an expanded allocution. Rather, there is direct precedent to the contrary. See, e.g., People v. Bryan, 129 AD3d 524 (1st Dept 2015) (the court had no obligation to conduct a sua sponte inquiry into postplea statements by defendant regarding his intoxication at the time of the crime that were reflected in the presentence report); People v. Castro, 102 AD3d 546 (1st Dept 2013) (the sentencing court was under no obligation to ask defendant about his postplea statement, reflected in the presentence report, that allegedly raised an issue about the nature of the stolen 15 property); People v. Espinal, 99 AD3d 435, 435 (1st Dept 2012) (the court was under no obligation to conduct a sua sponte inquiry into statements he made to the probation officer preparing the presentence report); People v. Rodriguez, 83 AD3d 449 (1st Dept 2011) (the court was not obligated to make a sua sponte inquiry into defendant’s postplea assertion of innocence, which was reflected in the presentence report); People v. Santos, 46 AD3d 365 (1st Dept 2007) (the court was under no obligation to make a sua sponte inquiry into defendant’s post-plea assertion of innocence contained in the presentence report); People v. Toussaint, 294 AD2d 129 (1st Dept 2002) (the court was under no obligation to conduct a sua sponte inquiry into statements he made to the probation officer preparing the presentence report); People v. Pantoja, 281 AD2d 245, 246 (1st Dept 2001) (the court was under no obligation to conduct a sua sponte inquiry into defendant’s denial of guilt to the probation officer preparing the presentence report); People v. Ntiamoah, 247 AD2d 248, 248 (1st Dept 1998) (statements to the Probation Department and at sentencing did not require the court to conduct a further inquiry sua sponte). Finally, as pointed out by Justice Manzanet-Daniels at oral argument, even if the narrative advanced in defendant’s statement in the PSR is true, it is not grounds for a justification defense. Defendant’s statement was, essentially, that his victim tried to hit him, so he responded by stabbing his victim to the point that he needed staples and stitches to close the wound. The justification statute, Penal Law § 16 35.15, states, “[a] person may not use deadly physical force upon another person . . . unless . . . [t]he actor reasonably believes that such other person is using or about to use deadly physical force.” At no time did defendant claim that his victim was about to use force remotely equivalent to the violence defendant levied in response. Therefore, the People respectfully submit that this case does not present the proper factual basis for an expansion of the court’s responsibility to inquire. CONCLUSION In sum, for the reasons discussed herein, as well as those set forth in the People’s Appellate Division Brief, this Court should either dismiss the appeal or affirm the order of the Appellate Division affirming the judgment of conviction. Respectfully submitted, ____________________ Emily Anne Aldridge Assistant District Attorney Appeals Bureau Cc: Robin Nichinsky, Esq. Center for Appellate Litigation 120 Wall Street, 28th Floor New York, NY 10005 17 PRINTING SPECIFICATIONS STATEMENT This letter was prepared in Microsoft Word, using 14-point Times New Roman font, and totaled 3,602 words.