| People v Haley |
| 2012 NY Slip Op 04794 [96 AD3d 1168] |
| June 14, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Colin Haley,Appellant. |
—[*1] Richard J. McNally Jr., District Attorney, Troy (Gordon W. Eddy of counsel), forrespondent.
Malone Jr., J. Appeal, by permission, from an order of the County Court of RensselaerCounty (Ceresia, J.), entered February 18, 2011, which denied defendant's motion pursuant toCPL 440.10 to vacate the judgment convicting him of the crimes of aggravated unlicensedoperation of a motor vehicle in the first degree and driving while intoxicated, without a hearing.
In December 2002, defendant, a native of Guyana who has been a lawful resident of theUnited States since 1983, pleaded guilty to the crimes of aggravated unlicensed operation of amotor vehicle in the first degree and driving while intoxicated. In 2010, the Department ofHomeland Security notified defendant that removal proceedings had been commenced as a resultof his conviction of aggravated unlicensed operation of a motor vehicle in the first degree, aswell as his two prior convictions of petit larceny in 1993 and 1999 (see 8 USC §1227 [a] [2] [A] [ii]). Defendant then immediately moved, pro se, to vacate the judgmentconvicting him of aggravated unlicensed operation of a motor vehicle in the first degree on thebasis that, among other things, his counsel had been ineffective for failing to advise him of theimmigration consequences of pleading guilty to that crime. County Court assigned counsel, whofiled supplemental motion papers. Then, without conducting a hearing, the court denied themotion. Defendant now appeals, by permission of this Court.[*2]
County Court did not abuse its discretion by denyingdefendant's motion without a hearing on the basis that the motion was procedurally defective.Although defendant's arguments exclusively pertain to matters entirely outside the record, neitherthe pro se motion papers nor the supplemental motion papers submitted by counsel contained"sworn allegations substantiating or tending to substantiate all the essential facts" underlying hisclaims (CPL 440.30 [4] [b]; see Peoplev Leonard, 63 AD3d 1278, 1278 [2009], lv denied 13 NY3d 797 [2009]; People v Murray, 25 AD3d 911,912 [2006], lv denied 6 NY3d 896 [2006]).
Even if we were to find defendant's motion papers to be sufficient, we would still find thatCounty Court did not abuse its discretion by denying the motion without a hearing. In order tosuccessfully assert an ineffective assistance of counsel claim under the US Constitution,defendant must demonstrate that counsel's performance was deficient and that such performanceprejudiced defendant (see Strickland v Washington, 466 US 668, 687 [1984]). Further,assuming, arguendo, that the recent US Supreme Court case, Padilla v Kentucky (559 US—, 130 S Ct 1473 [2010]), is appropriately applied retroactively,[FN*]the record before us reflects that, at the time that defendant pleaded guilty in 2002, he had beenpreviously twice convicted of petit larceny, which convictions rendered defendant a "deportablealien[ ]" according to federal law as early as 1999 (see 8 USC § 1227 [a] [2] [A][ii]). Thus, regardless of whether defendant pleaded guilty to the charges in 2002, had been foundguilty after trial or had been acquitted, his status as a deportable alien would not have beenaffected. Accordingly, the alleged failure of defendant's counsel to inform him of theimmigration consequences of his guilty plea in 2002 did not prejudice defendant in any way.
In light of this conclusion, we need not address defendant's remaining contention.
Peters, P.J., Rose, Lahtinen and Kavanagh, JJ., concur. Ordered that the order is affirmed.
Footnote *: Apparently, no appellate courtin this state has directly addressed this issue and the trial courts are split in their decisions (see People v Marino-Affaitati, 88AD3d 742, 744 [2011], lv denied 18 NY3d 995 [2012]; see also People vCoelho, 31 Misc 3d 1230[A], 2011 NY Slip Op 50913[U] [2011]; People v Gasperd,33 Misc 3d 1228[A], 2011 NY Slip Op 52147[U] [2011]). Because the issue is not directlybefore this Court, we will not make any determination in this regard.