| People v Rodriguez |
| 2017 NY Slip Op 03974 [150 AD3d 1029] |
| May 17, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Vina Rodriguez, Appellant. |
The Law Offices of Christopher J. Cassar, P.C., Huntington, NY, for appellant.
Thomas J. Spota, District Attorney, Riverhead, NY (Karla Lato of counsel), forrespondent.
Appeals by the defendant (1) from a judgment of the Supreme Court, Suffolk County(Cohen, J.), rendered April 4, 2013, convicting her of driving while intoxicated in violation ofVehicle and Traffic Law § 1192 (2) and aggravated unlicensed operation of a motorvehicle in the third degree, upon her plea of guilty, and imposing sentence, and (2), bypermission, from an order of the same court dated October 2, 2014, which denied, without ahearing, her motion pursuant to CPL 440.10 to vacate the judgment rendered April 4, 2013.
Ordered that the judgment and the order are affirmed.
The defendant, a citizen of El Salvador, pleaded guilty to driving while intoxicated inviolation of Vehicle and Traffic Law § 1192 (2) and aggravated unlicensedoperation of a motor vehicle in exchange for a sentence that included a conditional discharge.The Supreme Court subsequently imposed sentence on April 4, 2013, in accordance with theterms of the plea agreement. The defendant appeals.
Approximately one year after sentencing, the defendant moved to vacate the judgment ofconviction pursuant to CPL 440.10. She submitted, inter alia, her own affidavit, in which shestated that the Supreme Court "never informed [her] of the immigration consequences of thisplea," and that her attorney never answered her questions "regarding whether pleading guiltywould have any immigration consequences." In an order dated October 2, 2014, the court denied,without a hearing, the defendant's motion to vacate the judgment. By decision and order onapplication dated August 3, 2015, a Justice of this Court granted leave to appeal.
Contrary to the defendant's contention, the record of the plea proceeding confirms that theSupreme Court fulfilled its independent constitutional obligation to ascertain whether thedefendant's plea was voluntary by alerting her that she would be deported as a consequence ofpleading guilty (see generally People vPeque, 22 NY3d 168, 193-197 [2013]).
The Supreme Court also properly denied, without a hearing, the defendant's motion pursuantto CPL 440.10 to vacate the judgment on the ground that the defendant received ineffective [*2]assistance of counsel under the United States Constitution. Toprevail on a claim of ineffective assistance of counsel under the Sixth Amendment of the UnitedStates Constitution, the defendant must satisfy the two-prong standard of Strickland vWashington (466 US 668, 687 [1984]). "First, the defendant must show that counsel'sperformance was deficient. . . . Second, the defendant must show that the deficientperformance prejudiced the defense" (id. at 687). In Padilla v Kentucky (559 US356, 369 [2010]), the United States Supreme Court applied the Strickland framework to adefense attorney's advice, or lack thereof, regarding the immigration consequences of a plea ofguilty, reasoning that modern immigration law made the possibility of deportation so central to anoncitizen defendant's decision to plead guilty that defense counsel had to inform the defendantabout it prior to his or her plea of guilty (see People v Hernandez, 22 NY3d 972, 975 [2013]).
Here, although the defendant contends that her attorney failed to advise her that pleadingguilty would lead to her deportation, the record demonstrates that the defendant was properlyadvised of this consequence by the Supreme Court. Under the circumstances of this case, even ifdefense counsel failed to advise the defendant of the possible immigration consequences ofpleading guilty, the defendant was indisputably aware of those possible consequences before sheentered her plea. Accordingly, under the federal standard for a claim of ineffective assistance ofcounsel, the only standard invoked by the defendant in support of her motion and on appeal, thedefendant cannot show prejudice resulting from her attorney's alleged failure to provide thatadvice herself (see People vRampersaud, 121 AD3d 721, 722-723 [2014]). In other words, there is no reasonableprobability that the defendant would not have pleaded guilty but for counsel's alleged deficiency(see People v Hernandez, 22 NY3d at 976; compare People v Rampersaud, 121 AD3d 721 [2014], with People v Roberts, 143 AD3d843 [2016]).
The defendant's remaining contentions are without merit. Chambers, J.P., Sgroi, Duffy andBarros, JJ., concur.