People v Olivero

2015 NY Slip Op 06017 [130 AD3d 479]

July 9, 2015

Appellate Division, First Department

As corrected through Wednesday, September 2, 2015

[*1]

The People of the State of New York,Respondent, v Camacho Olivero, Appellant.

Labe M. Richman, New York, for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Patrick J. Hynes of counsel), forrespondent.

Judgment, Supreme Court, New York County (Daniel P. FitzGerald, J.), entered onor about September 17, 2014, which denied defendant's CPL 440.10 motion to vacate a2012 judgment of conviction, unanimously affirmed.

The court properly exercised its discretion in denying defendant's CPL 440.10motion without holding a hearing (see People v Samandarov, 13 NY3d 433, 439-440 [2009];People v Satterfield, 66 NY2d 796, 799-800 [1985]). In this post-Padillacase, defense counsel sufficiently met his obligation under Padilla vKentucky (559 US 356 [2010]) to advise defendant of the risk of deportation arisingfrom his guilty plea. Defendant was also advised of this risk in a notice presented to himby the prosecution, as well as in a statement by the court.

In addition to his Padilla claim, defendant argues that his counselaffirmatively misadvised him about the immigration consequences of his plea (see People v McDonald, 1NY3d 109 [2003]). However, viewed in context, counsel's reference to the"possibility" of deportation, in the event the immigration authorities took action, was notmisleading or inordinately optimistic, and the record provides no reason to believe thatcounsel told defendant that after pleading guilty to third-degree drug possession hewould still be eligible for citizenship.

Defendant also argues that his attorney rendered ineffective assistance in the pleabargaining process, in that he failed to minimize the immigration consequences of theconviction by obtaining a plea to a drug felony based on the weight of the drugs ratherthan intent to sell. However, the submissions on the motion failed to demonstrate anyreasonable probability that the People would have made such an offer (see Lafler vCooper, 566 US &mdash, —, 132 S Ct 1376, 1384-1385 [2012]).

In any event, with regard to all of defendant's claims, we conclude that defendant hasnot established prejudice. There is no indication that but for his attorney's allegedlydeficient performance, defendant would have proceeded to trial instead of pleading guilty(see People v Hernandez, 22NY3d 972, 975-976 [2013]).

[*2] Wehave considered defendant's remaining arguments and find them unavailing.Concur—Gonzalez, P.J., Friedman, Renwick, Moskowitz and Clark, JJ.