| People v Obeya |
| 2013 NY Slip Op 07088 [110 AD3d 1382] |
| October 31, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vClement Obeya, Appellant. |
—[*1] P. David Soares, District Attorney (Steven M. Sharp of counsel), forrespondent.
Egan Jr., J. Appeal, by permission, from an order of the Supreme Court (Breslin, J.),entered October 19, 2012 in Albany County, which denied defendant's motion pursuantto CPL 440.10 to vacate the judgment convicting him of the crime of petit larceny, aftera hearing.
In July 2008, defendant, a native of Nigeria who has been a lawful resident of theUnited States since 2004, pleaded guilty to one count of petit larceny and was sentencedto three years of probation.[FN1]Approximately nine months after defendant entered his plea, he was detained byimmigration officials for deportation. Three years later, defendant unsuccessfully movedto vacate the judgment of conviction, contending that he had received the ineffectiveassistance of counsel. Shortly thereafter, defendant again moved to vacate the judgmentof conviction pursuant to CPL 440.10 and, following a hearing, Supreme Court deniedthe motion finding, among other things, that defendant failed to establish that trialcounsel, David Ehrlich,[FN2][*2]provided erroneous advice regarding the immigrationconsequences of the guilty plea. Defendant now appeals, by permission.
We affirm. "To meet his burden of proving that he was deprived of meaningfulrepresentation related to his guilty plea, defendant was required to establish both 'thatcounsel's performance was deficient' and 'that the deficient performance prejudiced thedefense' " (People vGlasgow, 95 AD3d 1367, 1368 [2012], lv denied 20 NY3d 1061[2013], quoting Strickland v Washington, 466 US 668, 687 [1984]). Here, therecord indeed makes clear that defendant was concerned about the possibility of beingdeported. The record does not, however, establish that defendant was given erroneousadvice regarding the potential immigration consequences associated with his guiltyplea.[FN3]
To be sure, both defendant and his aunt testified that—based uponconversations with Ehrlich—they were left with "the distinct impression" thatpleading guilty to a misdemeanor would not adversely affect defendant's immigrationstatus. In this regard, defendant testified that Ehrlich advised that "he [did not] know ofanybody that ever got deported off a misdemeanor." From that statement, defendant"pretty much" concluded that he would not face any immigration consequences as theresult of his plea—particularly given that he would not be subject to any "jailtime." Defendant's aunt offered similar testimony, stating that Ehrlich indicated that amisdemeanor conviction "most likely" would not result in defendant's deportation.Defendant's aunt acknowledged, however, that Ehrlich's use of the phrase "most likely"necessarily meant that deportation remained a "possibility." To our analysis, the fact thatEhrlich "may have expressed his experience-based assessment of the likelihoodthat removal proceedings might or might not be initiated . . . was notmisleading," and the record as a whole falls short of establishing that Ehrlich's "advicewas deficient so as to satisfy the first prong of an ineffective assistance of counsel claim"(People v Glasgow, 95 AD3d at 1369). Accordingly, inasmuch as defendantfailed to demonstrate that he was deprived of meaningful representation, Supreme Courtproperly denied his motion to vacate the judgment of conviction.
Rose, J.P., Spain and Garry, JJ., concur. Ordered that the order is affirmed.
Footnote 1: The plea was in fullsatisfaction of a six-count indictment charging defendant with criminal possession of aforged instrument in the first degree.
Footnote 2: Although additionalcounsel was retained to assist with certain motion practice, Ehrlich remained the attorneyof record, and it is Ehrlich's advice that is at issue on this appeal.
Footnote 3: For purposes of thisdecision, we have assumed that petit larceny constitutes a deportable offense (see8 USC § 1227 [a] [2] [A] [i]).