| People v Lawrence |
| 2017 NY Slip Op 02479 [148 AD3d 1472] |
| March 30, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v Demar A.Lawrence, Appellant. |
Matthew K. Borowski, Buffalo, for appellant.
John M. Muehl, District Attorney, Cooperstown (Michael F. Getman of counsel), forrespondent.
Rose, J. Appeal, by permission, from an order of the County Court of Otsego County(Lambert, J.), entered February 24, 2016, which denied defendant's motion pursuant to CPL440.10 to vacate a judgment convicting him of the crime of attempted assault in the seconddegree, without a hearing.
In 2012, defendant pleaded guilty to the reduced charge of attempted assault in the seconddegree in satisfaction of a superior court information, admitting that he had assaulted anotherperson with a knife. Defendant was sentenced to time served and did not appeal. After defendant,a non-United States citizen, was detained by immigration officials for removal, he movedpursuant to CPL article 440 to vacate the judgment of conviction. The motion was premised uponthe claim that his plea was not knowing, voluntary or intelligent and he had been denied theeffective assistance of counsel in that counsel never advised him of the immigrationconsequences of his guilty plea. County Court denied the motion without a hearing, anddefendant now appeals by permission of this Court.
Initially, defendant does not dispute that County Court fulfilled its obligation during the pleaallocution by adequately advising him that, if he were not a Unites States citizen, his felonyconviction may expose him to deportation, thereby protecting his due process rights (see People [*2]v Peque, 22 NY3d 168, 192-193 [2013]).[FN*] Instead, defendant contends thatbecause defense counsel failed to inform him of those deportation consequences prior to hisguilty plea, he was deprived of the effective assistance of counsel, relying on Padilla vKentucky (559 US 356 [2010]), which was decided well before defendant's 2012 guilty pleahere. The Court of Appeals has recognized that, "because deportation is so closely related to thecriminal process and carries such high stakes for noncitizen defendants, a defense attorneydeprives a noncitizen defendant of his or her Sixth Amendment right to the effective assistanceof counsel by failing to advise, or by misadvising, the defendant about the immigrationconsequences of a guilty plea" (People v Peque, 22 NY3d at 190, citing Padilla vKentucky, 559 US at 366-374). In Padilla, the Supreme Court of the United Statesheld that defense counsel was obligated to accurately advise the defendant that his controlledsubstance conviction subjected him to automatic deportation (Padilla v Kentucky, 559US at 360, 368-369). Where, as here, deportation consequences of a guilty plea are less certainbecause removal was sought for a crime involving moral turpitude (see 8 USC§ 1182 [a] [2] [A] [i] [I]), counsel's obligation is more limited, requiring that adefendant be advised that a guilty plea "may carry a risk of adverse immigration consequences"(Padilla v Kentucky, 559 US at 369).
In moving to vacate the judgment, defendant submitted an affidavit in which he avers that heinformed defense counsel at the outset that he was a lawful permanent resident, and that counselprovided "no advice with respect to deportation." Under Padilla, where defense counselfails to advise a defendant of the possible, or presumptively mandatory, deportationconsequences of his or her plea, a defendant claiming ineffective assistance of counsel under theSixth Amendment must show that, in addition to deficient performance by counsel," 'there is a reasonable probability that, but for counsel's unprofessional errors, the resultof the proceeding would have been different' " (id. at 366, quoting Stricklandv Washington, 466 US 668, 694 [1984]; see People v Hernandez, 22 NY3d 972, 975 [2013], certdenied 572 US &mdash, 134 S Ct 1900 [2014]; People v Carty, 96 AD3d 1093, 1095 [2012]). "In the plea context,the defendant 'must show that there is a reasonable probability that, but for counsel's errors, he[or she] would not have pleaded guilty and would have insisted on going to trial' "(People v Hernandez, 22 NY3d at 975 [citations omitted], quoting Hill vLockhart, 474 US 52, 59 [1985]).
Here, even crediting the allegations in defendant's affidavit, he fails to demonstrate that thereis a "reasonable probability" that he would not have pleaded guilty had defense counsel advisedhim that a guilty plea may carry a risk of adverse immigration consequences. In fact, the recordclearly reflects that County Court expressly informed him of the possibility that he could bedeported as a result of his guilty plea and, so informed, he nonetheless thereafter pleaded guilty(see People v Hernandez, 22 NY3d at 975-976; People v Carty, 96 AD3d at1093-1096). Aside from his conclusory allegations, defendant fails to submit any evidence tosupport his claim that, had counsel informed him of the possibility of deportation in additionto County Court's advisement, he would have insisted on going to trial. Accordingly, hismotion to vacate was properly denied without a hearing (see CPL 440.30 [4] [d]; compare People v Diallo, 113 AD3d199, 200-202 [2013]).
[*3] Defendant's remainingclaims similarly lack merit.
Egan Jr., J.P., Lynch, Clark and Mulvey, JJ., concur. Ordered that the order is affirmed.
Footnote *:It has been held that People vPeque (supra), decided after defendant's right to a direct appeal expired here in 2012,does not apply retroactively to state court postconviction proceedings (see People v Pena, 132 AD3d 910,911 [2015], lv denied 26 NY3d 1148 [2016]; People v Llibre, 125 AD3d 422, 424 [2015], lvs denied 26NY3d 969 [2015], 27 NY3d 1001 [2016]).