Archives : 2010 : March

Immigration Law Update – Padilla v. Kentucky

On March 31, 2010, the United States Supreme Court issued an opinion in Padilla v. Kentucky (2010) 129 S.Ct. 1317.  The issue presented to the Court was whether a criminal defense attorney rendered ineffective assistance of counsel to a client when she failed to advise the client of and affirmatively gave wrong advice regarding the potential immigration consequences of his guilty plea.

Petitioner Padilla was a lawful permanent resident of the United States for over 40 years and honorably served in the U.S. Armed Forces in Vietnam.  Padilla pled guilty to a felony charge of transporting a large amount of marijuana in Kentucky.  His immigration attorney told him that he would not be deported because he had been in the country for so long.  However, the non-citizen removal statutes clearly state that any conviction for a drug trafficking offense will (not may, WILL) result in deportation.  Padilla claimed that he would have proceeded to trial had his immigration lawyer properly advised him that he would face deportation if convicted.

The lower courts, including the Kentucky State Supreme Court, held that a failure to advise on immigration issues and even wrong advice on immigration issues were merely a “collateral consequence” to his conviction thus his attorney’s erroneous advice was not a violation of his Sixth Amendment right to effective assistance of counsel.  Generally the court was saying that since the immigration issues were not a result of punishment by the criminal courts in direct response to his guilty plea, the Sixth Amendment did not apply.  An example of a collateral consequence would be a person losing their job because they pled guilty to a felony.  Although that is foreseeable and unfortunate, it is not a punishment doled out by the court and thus is a “collateral consequence”.

The United States Supreme Court disagreed with the Kentucky State Supreme Court.  Instead, the U.S. Supreme Court decided that immigration consequences are an integral part of the penalties associated with criminal proceedings for non-citizens because those consequences are often as severe, if not more so, than the actual criminal punishment.

The Court recognized that immigration law is a complex area of practice, but due to the severity of the consequence of a criminal conviction, criminal defense attorneys still have some duties to the clients with regard to immigration.

The Court held that if the immigration consequences were clear, as they were with Padilla, then an attorney has a duty to advise the client of those consequences prior to letting them enter a guilty plea.  In Padilla’s case, if the attorney had read merely the removal statute, she would have seen that his plea would automatically result in deportation because all drug trafficking offenses result in deportation.  If the consequences are not clear, the attorney then has a duty to advise the client that there will be immigration consequences including potential deportation but the attorney does not have to be more specific.

Illinois Reckless Homicide and Aggravated DUI Statutes

Under Illinois Law, 720 ILCS 5/9-3(a), you can be charged with the felony crime of Reckless Homicide (also known as vehicular manslaughter in some states) if you are driving a motor vehicle, snowmobile, all terrain vehicle or watercraft recklessly which causes the unintentional death of another person. The Illinois sentencing laws classify Reckless Homicide as a class 3 felony with a prison term of two to five years. If you are convicted for a reckless homicide, your license will be revoked for a minimum two years in Illinois. The court evaluates aggravating circumstances such as speed, gross negligence and drunk driving in determining sentencing of jail times, fines, penalties and revocation of driving privileges.

Class 2 Felony
The Reckless Homicide felony class 3 could be raised to a class 2 felony if there are aggravating circumstances as set forth under 720 ILCS 5/9(e)2 through (e)(9) and (f). Examples of Class 2 felonies are offenses that occur on a public thoroughfare involving children going to and from school where there is a crossing guard, where the defendant was driving in a construction or maintenance zone, the defendant caused the death of two or more persons in a single accident or a victim was a family or household member. Class 2 felonies have mandatory sentencing ranging from three years to 14 years. However, a third DUI or aggravated DUI in Illinois is also classified as a Class 2 felony under the DUI Statute 625 ILCS 5/11-501. If convicted of a third DUI offense, then the sentence ranges from one year to 12 years and 6 years to 28 years if two people died in the accident. You could be charged with multiple offenses such as Reckless Homicide and Aggravated DUI.

Case Example
Unfortunately, there are many examples of aggravated DUI and reckless homicide cases that occur frequently in Illinois. For instance, in March of 2010, a 50 year old male employee of St. Charles’ Illinois Youth Center was charged with reckless homicide regarding the death of a St. Charles resident that occurred in 2008. The defendant tried to pass multiple cars in a no passing zone of a two lane highway when he crashed head on into the victim’s vehicle at 5:30 a.m. The victim was pronounced dead at the scene. The defendant was charged with three aggravated DUI charges for driving a vehicle under the influence of Codeine, which is a controlled substance, driving under the influence of alcohol and also for the combination of driving under the influence of the controlled substance Codeine and alcohol. He faces a possible sentence of 3 to 14 years for each aggravated DUI charge. The case was delayed because of blood alcohol level records. Bail was set at $500,000.

If you have been arrested for Reckless Homicide and/or aggravated DUI charges, you should contact an Illinois criminal defense firm immediately upon your arrest to defend you because these are serious charges. The attorney may be able to argue that there were mistakes in the evidence including your BAC test or improper calibrations in the breathalyzer machines. The police could have taken advantage of you and used illegal means to obtain your consent to testing for alcohol or other controlled substances. It is also possible that samples of blood or urine could have been contaminated. You may be able to get the DUI charges thrown out or reduced to speeding or lane changing, or the Reckless Homicide charges reduced to simple negligence. The attorney will evaluate your case and advise you of all your legal remedies and defenses.

Domestic Homicides on the Rise in NYC

Homicide numbers are jumping at startling rates this month. All five boroughs are reporting drastic increases in gang activity and domestic murders. Shootings in general resulting in serious injury are up over 25% this year from 2009.

Last year New York had the lowest murder rate in history. Now a few short months later it seems shootings are at an all time rise. NYPD feels as if their big success is losing ground.

Fellow New Yorkers sense the rise has to do with smaller police divisions and less officers on the streets. This is of course responsibility to the top secret terrorism operations needed in order to protect New York City. Economic times and lack of police funds this year is another reason for increased violence. Police officials claim more funds are being cut and may only worsen the effects in the city with fewer officers out on the streets.

Police officials have long credited the dramatic drop in crime last year to Operation Impact. A scheme when rookie NYC officers are sent out in uniform, in crime prone neighborhoods. With more police presence it is thought crime numbers would lessen. This theory seemed proven true until the past few months. Murder numbers are especially high in domestic related situations. Operation Impact is not meant to discourage such violence, but for gang related crime.

With the sudden surge in crime throughout the city, the NYPD will be bringing on officers from borough task forces to supplement the efforts in intense crime areas.

Jermaine Ruiz 24 of Brooklyn, according to the Huffington Post, is an example of domestic related homicide issues in NYC. He was charged with three counts of murder in the stabbing deaths of his girlfriend, Jessica Ybe, 22, and her 2 and 5 year old daughters. Neighbors said he asked where he could “dispose of heavy garbage that smells badly” (NY Daily News). He confessed to the murders and his own father called NYPD on him. They had 2 other children together who were unharmed and being watched by their grandparents.

The public defenders office has been assigned to Mr. Ruiz as counsel. While no private Attorney has been assigned to this case, he will need a very good Criminal Law Attorney in order to begin a defense with a promising outcome.

NYPD needs to come up with a plan for crime situations such as these. Everyday we hear about children being murdered or sexually abused by relatives or family friends. Gang violence has always been a threat for the city but now their focus needs to shift gears. Tougher enforcement on domestic violence and protection orders is needed. In the end it may result in saving a lot of lives.