| People v Lujan |
| 2014 NY Slip Op 01341 [114 AD3d 963] |
| February 26, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v John Freddy Lujan, Appellant. |
—[*1] Janet DiFiore, District Attorney, White Plains, N.Y. (Laurie Sapakoff and RichardLongworth Hecht of counsel), for respondent.
Appeals by the defendant from two judgments of the Supreme Court, WestchesterCounty (Zambelli, J.), both rendered March 5, 2013, convicting him of criminal sale of acontrolled substance in the third degree under indictment No. 12-01273, and attemptedcriminal possession of a controlled substance in the fourth degree under superior courtinformation No. 12-01350, upon his pleas of guilty, and imposing sentences.
Ordered that the judgments are affirmed.
The defendant contends that he was deprived of his constitutional right to theeffective assistance of counsel based on defense counsel's failure to advise him about theimmigration consequences of his pleas of guilty (see Padilla v Kentucky, 559 US356 [2010]). In evaluating an ineffective assistance of counsel claim, the courts look tothe fairness of the proceedings as a whole, or whether the defendant received meaningfulrepresentation (see People vHeidgen, 22 NY3d 259, 278 [2013]; People v Caban, 5 NY3d 143, 156 [2005]). "[A]defendant's showing of prejudice [is] a significant but not indispensable element" indetermining whether the standard of meaningful representation was achieved (People v Stultz, 2 NY3d277, 284 [2004]; see People v Heidgen, 22 NY3d at 278-279; People vBenevento, 91 NY2d 708, 714 [1998]). In the context of a Padilla claim, adefendant "must convince the court that a decision to reject the plea bargain would havebeen rational under the circumstances" (Padilla v Kentucky, 559 US at 372; see People v Picca, 97 AD3d170, 178 [2012]).
Here, the defendant failed to demonstrate that a decision to reject the pleas wouldhave been rational under the circumstances (cf. People v Picca, 97 AD3d at184-185). Since there was no reasonable probability that the result would have beendifferent and that he would not have taken the pleas, the defendant's claim also failsunder the federal standard (see Strickland v Washington, 466 US 668, 694[1984]).
Although a claim that a plea of guilty was not voluntary survives a valid waiver ofthe right to appeal (see People v Seaberg, 74 NY2d 1, 10 [1989]; People v Persaud, 109 AD3d626 [2013]), the [*2]defendant failed to preserve forappellate review his contention that his pleas of guilty were not knowing, voluntary, orintelligent since he did not move to withdraw his pleas on this ground prior to theimposition of sentence (see CPL 220.60 [3]; People v Clarke, 93 NY2d904, 906 [1999]; People vOvalle, 112 AD3d 971 [2013]; People v Devodier, 102 AD3d 884 [2013]). Further, theexception to the preservation requirement does not apply here, since the defendant's pleaallocutions did not cast significant doubt upon his guilt, negate an essential element ofthe crimes, or call into question the voluntariness of the pleas (see People vLopez, 71 NY2d 662, 666 [1988]). In any event, this contention is without merit.Rivera, J.P., Leventhal, Austin and Roman, JJ., concur.