| People v Canales |
| 2008 NY Slip Op 00850 [48 AD3d 1105] |
| February 1, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Jose V.Canales, Appellant. |
—[*1] Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), forrespondent.
Appeal from a judgment of the Oneida County Court (Barry M. Donalty, J.), rendered July21, 2003. The judgment convicted defendant, upon his plea of guilty, of assault in the seconddegree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of assaultin the second degree (Penal Law § 120.05 [2]), defendant contends that County Courtabused its discretion in denying his motion to vacate the plea. We reject that contention. In theabsence of some evidence of innocence, fraud, or mistake in the inducement of the plea, thedecision whether to permit a defendant to withdraw a plea of guilty rests solely within the court'sdiscretion (see People v Thomas, 17AD3d 1047 [2005], lv denied 5 NY3d 770 [2005]). In support of his motion,defendant challenged the factual sufficiency of the plea allocution based on a potentialjustification defense raised during the plea allocution. That challenge lacks merit. "The recordestablishes that, when defendant made statements that raised the possibility of a justificationdefense, the court advised defendant that he had the right to present a justification defense attrial, and properly conducted a sufficient further inquiry to ensure that the plea was knowing andvoluntary" (People v Greer, 277 AD2d 1051 [2000], lv denied 96 NY2d 829[2001]; cf. People v Ponder, 34AD3d 1314 [2006]). We reject the further contention of defendant in support of his motionthat he was entitled to withdraw the plea because he was unaware of the immigrationconsequences of his plea at the time he entered the plea. We reject that contention as well,inasmuch as the immigration consequences of a plea do "not affect the voluntariness of the pleaor warrant its vacatur" (People vKlein, 11 AD3d 959, 959 [2004]). Finally, defendant contends that he was deniedeffective assistance of counsel based on the failure of his two attorneys to advise him of theimmigration consequences of the plea. To the extent that the contention of defendant survives hisplea of guilty (see People v Burke, 256 AD2d 1244 [1998], lv denied 93 NY2d851 [1999]), we conclude that it lacks merit (see People v Ford, 86 NY2d 397, 405[1995]). Present—Scudder, P.J., Hurlbutt, Lunn, Green and Gorski, JJ.