| People v Castro |
| 2015 NY Slip Op 08207 [133 AD3d 986] |
| November 12, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vRoberto Castro, Appellant. |
Frederick P. Korkosz, Albany, for appellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), forrespondent.
Lahtinen, J.P. Appeal, by permission, from an order of the County Court of AlbanyCounty (Herrick, J.), entered February 2, 2015, which denied defendant's motionpursuant to CPL 440.10 to vacate a judgment convicting him of the crime of grandlarceny in the third degree, without a hearing.
Defendant, a noncitizen of the United States with permanent residence status, wascharged with grand larceny in the second degree for his alleged role in a scheme in whicha significant amount of money was pilfered from the supplemental nutrition assistanceprogram between 2008 and 2011. He pleaded guilty in 2012 to the reduced charge ofgrand larceny in the third degree and received a negotiated sentence of 1 to 3 years inprison. In 2014, he made a CPL article 440 motion to vacate the judgment of convictioncontending that his plea was involuntary and that he had not received the effectiveassistance of counsel because he had not been adequately warned of potential deportationconsequences and his counsel had not informed him of a possible suppression motionregarding evidence seized by law enforcement. County Court denied the motion withouta hearing, and defendant, by permission, appeals.
We affirm. At the time of defendant's plea, the law had been "established that thefailure of counsel to advise a defendant of the possibility of deportation as a result of hisor her plea constitutes the ineffective assistance of counsel" (People v Diallo, 88 AD3d1152, 1153 [2011], lv denied 18 NY3d 993 [2012]; see Padilla vKentucky, 559 US 356 [2010]). During the plea proceeding, he was advised, amongother things, that his conviction "may result in your deportation" and, when he inquiredabout a specific percentage of that happening, he was told a [*2]percentage could not be given but that it was "a very realpossibility." Defendant acknowledged that the topic of deportation had been discussedseveral times with his attorney and, later in the proceeding, County Court again warnedthat the plea he was about to give could be used in future proceedings, "[i]ncludingproceedings relative to your [i]mmigration status." Defendant did not deny in his motionthat such warnings were given, but contends that he should have been told thatdeportation was "a certainty." There are no particular words or phrases that must be usedto adequately apprise a defendant of potential deportation as a result of pleading guilty.Here, his attorney, as well as County Court, clearly communicated on the record at theplea proceeding the potential deportation consequences resulting from defendant's plea.This was sufficient warning and, accordingly, County Court did not err in denying themotion without a hearing (seePeople v Achouatte, 91 AD3d 1028, 1029 [2012], lv denied 18 NY3d954 [2012], cert denied 568 US &mdash, 133 S Ct 216 [2012]).
Defendant further asserts that his attorney failed to advise him of a possiblesuppression motion. The record of the plea colloquy, however, reflects that defendantacknowledged that he had discussed with his attorney possible legal or constitutionaldefenses, he had no further questions, he was satisfied with his attorney's legalrepresentation and he understood that as part of the plea he was giving up various rights,including to file motions or have pretrial hearings. Given such on-the-record statements,this aspect of defendant's motion was also properly denied without a hearing (see People v Reynoso, 88AD3d 1162, 1163 [2011]). The remaining argument has been considered and iswithout merit.
Egan Jr., Devine and Clark, JJ., concur. Ordered that the order is affirmed.