| People v Shabaan |
| 2016 NY Slip Op 02561 [138 AD3d 407] |
| April 5, 2016 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Amir Shabaan, Appellant. |
Labe M. Richman, New York, for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Patrick J. Hynes of counsel), forrespondent.
Order, Supreme Court, New York County (Laura A. Ward, J.), entered on or aboutMay 1, 2015, which denied defendant's CPL 440.10 motion to vacate a 2008 judgment ofconviction, unanimously affirmed.
Defendant argues that his counsel affirmatively misadvised him about theimmigration consequences of his plea (see People v McDonald, 1 NY3d 109, 111 [2003]).However, neither counsel's statement that he would "do what he could to help" defendantwith respect to defendant's stated desire to join the Army, nor counsel's request that thecourt issue a certificate of relief from disabilities to help defendant enlist despite hisconviction, constituted an assurance or mistaken advice that defendant would not bedeported as a consequence of his plea.
Defendant further 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 fail to establish anyreasonable probability that the People would have made such an offer (see Lafler vCooper, 566 US &mdash, &mdash, 132 S Ct 1376, 1384-1385 [2012]).
In any event, defendant has not established prejudice. There is no indication that butfor his attorney's allegedly deficient performance, defendant would have proceeded totrial instead of pleading guilty (see People v Hernandez, 22 NY3d 972, 975-976[2013]).
Defendant's claim that the court gave misleading advice concerning the immigrationconsequences of the plea (seePeople v Peque, 22 NY3d 168 [2013], cert denied 574 US &mdash, 135S Ct 90 [2014]) is not cognizable on a CPL article 440 motion (see People v Llibre, 125 AD3d422, 423 [1st Dept 2015], lv denied 26 NY3d 969 [2015]). In any event,Peque is only retroactive to cases pending on direct appeal, and not convictionsthat have become final (id. at 424). Concur—Mazzarelli, J.P., Andrias,Saxe, Moskowitz and Kahn, JJ.