The People, Appellant,v.Roman Baret, Respondent.BriefN.Y.May 1, 2014Argued by JASON S. WHITEHEAD COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent-Appellant, -against- ROMAN BARET, Defendant -Appellee. BRIEF FOR RESPONDENT-APPELLANT ROBERT T. JOHNSON District Attorney Bronx County Attorney for Respondent- Appellant Bronx, New York 10451 (718) 838-7078 (718) 590-6523 JOSEPH N. FERDENZI JASON S. WHITEHEAD Assistant District Attorneys Of Counsel Date Completed: September 11, 2013 PRINTED ON RECYCLED PAPER TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 THE FACTS ...................................................... 3 The Indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 The Plea and Sentencing ........................................ 3 The Direct Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 The Motion To Vacate Judgment ................................. 5 Appeal Of Order Denying Motion To Vacate Judgment ............... 7 ARGUMENT UNDER CHAIDEZ V. UNITED STATES, THE APPELLATE DIVISION'S DECISION APPLYING PADILLA V. KENTUCKY TO DEFENDANT'S 1996 CONVICTION IS WRONG AS A MATTER OF LAW, AND MUST THEREFORE BE REVERSED ................... 9 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 PRINTING SPECIFICATIONS STATEMENT........................ 1-A TABLE OF AUTHORITIES Page(s) CASES Federal Chaidez v. United States,_ U.S._, 133 S.Ct. 1103 (2013) ............. 9, 10 Padilla v. Kentucky,_ U.S._, 130 S.Ct. 1473 (2010) ............... passim Teague v. Lane, 489 U.S. 288 (1989) .............................. 6, 8, 10 State People v. Andrews, 108 A.D.3d 727 (2d Dept. 2013) ...................... 9 People v. Baret, 11 N.Y.3d 31 (2008) ................................... 9 People v. Baret, 43 A.D.3d 648 (1st Dept. 2007), aff'd., 11 N.Y.3d31 (2008) .......................................... 5 People v. Bennett, 28 Misc.3d 575 (Crim. Ct. Bx. Co. May 26, 2010) ......... 6 People v. Bent, 108 A.D.3d 882 (3d Dept. 2013) .......................... 9 People v. Eastman, 85 N.Y.2d 265 (1995) ............................. 6, 8 People v. Ford, 86 N.Y.2d 397 (1995) ................................. 10 People v. Garcia, 29 Misc.3d 756 (Sup. Ct. Kings Co. Aug. 26, 2010) ......... 6 People v. Kabre, 29 Misc.3d 307 (Crim. Ct. N.Y. Co. July 22, 2010) .......... 7 People v. McDonald, 1 N.Y.3d 109 (2003) ............................. 10 People v. Verdejo, _ A.D.3d _, 2013 N.Y. Slip. Op. 04913 (1st Dept. 2013) ............................. 9 Policano v. Herbert, 7 N.Y.3d 588 (2006) ............................... 9 STATUTES CPL § 440 ........................................................ 1 Penal Law § 220.39 ............................................... 1, 3 ii COURT OF APPEALS STATE OF NEW YORK ---------------------------------------------------------------X THE PEOPLE OF THE STATE OF NEW YORK, Respondent-Appellant, -against- ROMAN BARET, Defendant-Appellee. ---------------------------------------------------------------X BRIEF FOR RESPONDENT STATEMENT By permission of the Honorable RobertS. Smith, Associate Judge of the Court of Appeals, the People of the State of New York appeal from an order of the Appellate Division, First Department, entered on October 2, 2012, which reversed an order of the Supreme Court, Bronx County (Bruce, J.), dated March 3, 2011, denying defendant's CPL § 440 motion to vacate the judgment of conviction entered on December 20, 2004, in Supreme Court, Bronx County (Lorenzo, J.). Defendant pled guilty to Criminal Sale of a Controlled Substance in the Third Degree (Penal Law§ 220.39), and was sentenced to two to six years imprisonment. Defendant has completed that sentence. Defendant is being held by immigration authorities and has been ordered removed to his native country of the Dominican Republic. QUESTION PRESENTED Whether, in light of Chaidez v. United States, 133 S.Ct. 1103 (2013), the Appellate Division, First Department, erroneously concluded that the holding in Padilla v. Kentucky, 130 S.Ct. 1473 (2010), should be applied retroactively? 2 THE FACTS The Indictment By indictment, filed on April 20, 1995 (Indictment Number 2735/95), the Bronx County Grand Jury charged defendant with Criminal Sale of a Controlled Substance in the Third Degree (six counts), Criminal Possession of a Controlled Substance in the third Degree (six counts), and charged defendant, acting in concert with Reynardo Nunez, to commit the crimes of Criminal Possession of a Controlled Substance in the Third Degree (two counts), and Criminal Possession of a Controlled Substance in the Fourth Degree (A1-A7). The Plea And Sentencing On December 23, 1996, at a scheduled court appearance, defendant's attorney, David Goldstein, Esq., informed the court that, after discussions with the prosecution, the parties had reached a negotiated plea bargain. Defendant agreed to plead guilty to Criminal Sale of a Controlled Substance in the Third Degree (Penal Law§ 220.39; the 11th count in the indictment), in exchange for receiving a prison sentence of two to six years, and the court's recommendation for shock incarceration. (A9-A10). The prosecutor informed the court that defendant "further underst[ ood]" that his co-defendant (Nunez) would be allowed to plead guilty to an attempted sale and receive probation since "[h]e is only charged in one sale, whereas [defendant] is 3 charged regarding multiple sales, anywhere from five to SIX sales at the same location" (Al0). 1 Before he entered his guilty plea, defendant agreed to plead guilty to Criminal Sale in the Third Degree, in full satisfaction of the indictment, for knowingly selling cocaine at 4:20p.m., on April4, 1995, at 625 East 137th Street, in Bronx County. He acknowledged that he understood that his guilty plea was the equivalent to being convicted by a jury after a trial, and that by pleading guilty he was giving up his right to remain silent, to a jury trial, to seek suppression of identification testimony and physical evidence, and to present his own evidence at trial. He confirmed that he understood that he could receive between 8113 to 25 years in prison if convicted at trial of this crime. He then assured the court that no one forced him to plead guilty (Al8- A23). The court accepted defendant's plea based on defendant's unequivocal assurances, adjourned the matter for sentencing, and instructed defendant to return on his own recognizance. The court warned defendant that if he failed to abide by the terms of the plea or failed to return, the court was authorized to sentence him in 1 In pleading guilty, co-defendant Nunez stated, "Yes," when the court asked him whether, on the date that he attempted to sell cocaine, he and defendant were working together to sell drugs (A14). Nunez did not appeal his conviction. 4 absentia to the maximum term of incarceration ( A24-A25). 2 On September 23, 1997, defendant failed to appear for sentencing and a bench warrant was issued. More than seven years later, on October 20, 2004, defendant returned to court involuntarily, after being apprehended by New Jersey authorities (Al06, A235). On December 20, 2004, despite defendant's failure to appear for sentencing voluntarily, the court (Lorenzo, J.) sentenced defendant to a term of incarceration of two to six years, pursuant to the negotiated plea (A110, A235, A306-A307). The Direct Appeal On June 25, 2008, this Court affirmed defendant's conviction. People v. Baret, 43 A.D.3d 648 (1st Dept. 2007), aff'd., 11 N.Y.3d 31 (2008). Defendant did not seek a writ of certiorari from the Supreme Court of the United States. The Motion To Vacate The .Judgment More than two years after his conviction was upheld on direct appeal, defendant filed a motion to vacate his conviction. In his motion, citing primarily to Padilla v. Kentucky,_ U.S._, 130 S.Ct. 1473 (2010), defendant claimed that he received the ineffective assistance of counsel because his counsel failed to advise him 2Prior to sentencing, defendant moved to withdraw his plea on the ground that he was coerced to plead guilty. Defendant asserted that he was under duress at the time of his guilty plea because if he did not accept the plea deal, then Nunez would not be allowed to plead guilty, and, as a consequence, Nunez threatened defendant with physical harm if did not accept the plea (A88-A98). The People opposed defendant's motion, and, by a Decision and Order, dated July 31, 1997, the court (Stackhouse, J.) denied the motion (A99-A102). 5 of the immigration consequences of his guilty plea. He further contended that he suffered prejudice because he would have rejected the plea and gone to trial had counsel properly advised him (A26, A32-A33, A57-A58). Relying solely on federal law and New York State cases which cite to federal law,3 defendant argued that the Padilla holding merely applied an old rule to a new set of facts (A45-A55), citing Teague v. Lane, 489 U.S. 288 [1989]~ People v. Eastman, 85 N.Y.2d 265 [1995]; People v. Bennett, 28 Misc.3d 575 [Crim. Ct. Bx. Co. May 26, 2010]; People v. Garcia, 29 Misc.3d 756 [Sup. Ct. Kings Co. Aug. 26, 201 0]). Defendant further argued that even if Padilla represented a new rule, it should have retroactive effect because it was a watershed decision (A55-A56). In opposition, the People argued that the duty of a defense attorney to inform a criminal defendant about immigration consequences of a plea did not exist in 1996 at the time defendant pled guilty, and that, since the holding in Padilla represented a clear change in the law, Padilla should not be applied retroactively to defendant's case. Moreover, the People argued that the Padilla rule was not a watershed rule because the rule did not relate to a defendant's guilt or innocence (A115, A126- A131). In any event, if the court were to apply Padilla retroactively, defendant would 3Defendant never raised any state retroactivity argument, asserting before the motion court that "[t]he Pepper line of cases are not really applicable because they involve the retroactive application of ... New York State precedents" (A52). 6 not prevail because he had failed to establish a prima facie case of ineffective assistance of counsel (Al3l-Al38). On March 3, 2011, the motion court (Bruce, J.) denied defendant's 440 motion without a hearing (A333). In holding that Padilla was not retroactive, the motion court adopted the reasoning in People v. Kabre, 29 Misc.3d 307 (Crim. Ct. N.Y. Co. July 22, 2010), which relied solely on federal retroactivity principles to find that the holding in Padilla represented a new rule, and, thus, was not retroactive (A336). The motion court also found that defendant had not shown that his plea counsel was ineffective under Strickland in light of the generous plea bargain he received (A336- A339). Defendant sought leave to appeal the 440 decision. On August l, 2011, the Honorable Sallie Manzanet-Daniels, Associate Justice of the Appellate Division, First Department granted that application (A340). Appeal Of Order Denyin~: Motion To Vacate .Judgment In December of 2011, defendant filed his brief in the Appellate Division. As in his 440 motion, defendant cited federal law for the proposition that: (a) his plea counsel was deficient for not advising him in 1996 about the immigration consequences of his guilty plea; and (b) Padilla should be applied to his 1996 conviction (A341, A353-A363, A363-A378). 7 On October 2, 2012, the Appellate Division unanimously reversed the motion court's decision, finding Padilla retroactive, at least as to pleas taken after Congress had made significant changes to the immigration law. Citing Teague and Eastman, the Appellate Division found that: Padilla did not establish a "new" rule under Teague; rather, it followed from the clearly established principles of the guarantee of effective assistance of counsel under Strickland, and "merely clarified the law as it applied to the particular facts." Rather than overrule a clear past precedent, Padilla held that Strickland applies to advice concerning deportation, whether it be incorrect advice or no advice at all (citations omitted). (A510, A512). On this rationale, the Appellate Division remanded the case for a hearing to determine whether defendant's plea attorney was deficient, and whether that deficiency caused defendant prejudice (A513). 8 ARGUMENT UNDER CHAIDEZ V. UNITED STATES, THE APPELLATE DIVISION'S DECISION APPLYING PADILLA V. KENTUCKY TO DEFENDANT'S 1996 CONVICTION IS WRONG AS A MATTER OF LAW, AND MUST THEREFORE BE REVERSED. Based on its analysis of federal law, the Appellate Division reversed the lower court's determination that Padilla v. Kentucky,_ U.S._, 130 S.Ct. 1473 (2010), should not be applied retroactively. Subsequent to the Appellate Division's reversal in this case, the United States Supreme Court held that Padilla should not be applied retroactively to cases that are final. Chaidez v. United States,_ U.S._, 133 S.Ct. 1103, 1113 (2013). Since Chaidez, the Appellate Division has recognized that its retroactivity decision was effectively overruled. See People v. Verdejo, _ A.D.3d _, 2013 N.Y. Slip. Op. 04913 (1st Dept. 2013); accord People v. Andrews, 108 A.D.3d 727 (2d Dept. 2013) (holding Padilla is not retroactive); People v. Bent, 108 A.D.3d 882 (3d Dept. 2013) (same). Here, defendant's conviction was affirmed by this Court on June 25, 2008. People v. Baret, ll N.Y.3d 31 (2008). Therefore, defendant's conviction became final, at the latest, on September 24, 2008. See Policano v. Herbert, 7 N.Y.3d 588 (2006) (conviction becomes final 90 days after the time expires for petitioning the United States Supreme Court for a writ of certiorari). Padilla was decided on March 9 31, 2010, long after defendant's conviction became final. Hence, as a matter of federal law, the Padilla rule cannot be applied retroactively to vacate defendant's conviction. See Chaidez, 133 S.Ct. at 1113. Under New York law, defendant's claim that he received ineffective assistance of counsel because his attorney failed to advise him of immigration consequences in 1996 when he pled guilty does not state a basis for vacating his conviction. See People v. Ford, 86 N.Y.2d 397,404 (1995); compare People v. McDonald, 1 N.Y.3d 109, 113-114 (2003) (counsel's misadvice concerning immigration consequences can constitute ineffective assistance of counsel). The motion court was correct when it held that Padilla did not have retroactive effect. See Teague v. Lane, 489 U.S. 288 (1989); Chaidez, 133 S.Ct. 1103. Therefore, the Appellate Division incorrectly held otherwise, and its decision must be reversed. 10 CONCLUSION THIS COURT SHOULD REVERSE THE DECISION AND ORDER OF THE APPELLATE DIVISION. JOSEPH N. FERDENZI JASON S. WHITEHEAD Assistant District Attorneys Of Counsel SEPTEMBER 11,2013 11 Respectfully submitted, ROBERT T. JOHNSON District Attorney Bronx County f(i'o,ney fqr Re~dent~, t 1 I ~ \ f It By: ~, A~sistant District Attorney Appeals Bureau PRINTING SPECIFICATIONS STATEMENT Processing System: Word Perfect Typeface: Times New Roman Point Size: Body of the Brief, 14 point; footnotes, 12 point Word Count: 1935 lA