| People v Achouatte |
| 2012 NY Slip Op 00135 [91 AD3d 1028] |
| Jnury 12, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v JihadAchouatte, Appellant. |
—[*1] Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport of counsel), forrespondent.
Egan Jr., J. Appeal, by permission, from an order of the County Court of Warren County(Hall Jr., J.), entered August 9, 2010, which denied defendant's motion pursuant to CPL 440.10to vacate the judgment convicting him of the crime of criminal possession of a controlledsubstance in the fourth degree, without a hearing.
In full satisfaction of a four-count indictment, defendant, a Moroccan citizen, waived hisright to appeal, pleaded guilty to criminal possession of a controlled substance in the fourthdegree and thereafter was sentenced to the agreed-upon prison term of three years followed bytwo years of postrelease supervision. Defendant subsequently filed this pro se motion pursuant toCPL 440.10 contending, insofar as is relevant to this appeal, that his plea was involuntary andthat he was denied the effective assistance of counsel due to counsel's alleged failure to properlyadvise him of the potential immigration consequences of his plea. County Court denieddefendant's motion without a hearing and, with this Court's permission, defendant now appeals.
We affirm. Inasmuch as defendant alleges that he would not have pleaded guilty but forcounsel's purported misrepresentations regarding defendant's immigration status, defendant'sineffective assistance of counsel claim impacts the voluntariness of his plea and, hence, surviveshis otherwise valid waiver of the right to appeal (see People v Williams, 72 AD3d 1347, 1348 [2010]; People v Marshall, 66 AD3d 1115,1116 [2009]). Although properly before us, defendant's assertion that defense counsel "failed toinvestigate the immigration consequences [*2]associated with theproposed plea" and affirmatively misrepresented that defendant "did not have to worry about hisimmigration status" nonetheless is belied by the record as a whole. Accordingly, County Courtproperly denied defendant's motion without a hearing.
Although the parties make scant reference to the relevant provisions of the Immigration andNationality Act (8 USC § 1101 et seq.), there appears to be little question thatdefendant's plea to criminal possession of a controlled substance in the fourth degree renderedhim subject to deportation (see 8 USC § 1227 [a] [2] [B] [i]; People vMarshall, 66 AD3d at 1116). There also, however, is no question that defendant repeatedlywas made aware of the potential impact that his plea could have upon his immigration status.During a pretrial conference conducted in August 2007, the District Attorney, defense counseland County Court discussed the potential immigration consequences should defendant elect toeither plead guilty or proceed to trial, and County Court advised defendant that a felonyconviction "may result in [his] deportation, exclusion from admission to the United States ordenial of naturalization." For that reason, County Court granted defense counsel's request thatdefendant be given additional time to consider his options. When the parties returned to court inSeptember 2007, defense counsel expressed concern that the offer then proposed by the Peoplewould "result not only in [defendant's] participation [sic], but permanent barring into thecountry" and requested an adjournment so that defendant could consult with the immigrationattorney who had been retained by his family. County Court granted that request, stating, "I amnot an immigration lawyer, but . . . this . . . has some very seriousramifications for you. So I think it's a good idea that you talk to an immigration attorney."
Defendant reappeared before County Court in November 2007, at which time he indicatedthat he wished to enter a plea. Prior to accepting defendant's plea, County Court reiterated that ithad no control over defendant's immigration status and made clear that it was not making anyguarantees as to what might transpire in that regard should defendant elect to plead guilty. UponCounty Court's further inquiry, defense counsel advised the court that the proposed plea tocriminal possession of a controlled substance in the fourth degree had been reviewed bydefendant's immigration attorney, who, in turn, had indicated that such a plea would afford "anopportunity to fight perhaps deportation but certainly be able to fight [defendant's] exclusionfrom the country." After ascertaining that defendant had sufficient time to confer with counseland delineating the various rights that defendant would be forfeiting, County Court accepteddefendant's plea.
Although the parties debate whether defendant's deportation was a foregone conclusion and,further, whether defendant was eligible to have his removal from this country canceled by theUnited States Attorney General, we nonetheless are satisfied that defense counsel fulfilled hisobligations under Padilla v Kentucky (559 US —, —, 130 S Ct 1473, 1483[2010]) and that defendant's plea as a whole was knowing, intelligent and voluntary.Accordingly, we discern no need for a hearing on defendant's motion (compare People v Reynoso, 88 AD3d1162, 1163-1164 [2011]; People v Williams, 72 AD3d at 1348; People vMarshall, 66 AD3d at 1116).
Spain, J.P., Malone Jr., Stein and McCarthy, JJ., concur. Ordered that the order is affirmed.