| People v Alexander |
| 2018 NY Slip Op 02190 [159 AD3d 1019] |
| March 28, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Kwane Alexander, Appellant. |
Paul Skip Laisure, New York, NY, for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Solomon Neubort ofcounsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (AnnDonnelly, J.), rendered July 9, 2013, convicting him of attempted murder in second degree, uponhis plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that the Supreme Court failed to properly advise him of theimmigration consequences of his plea of guilty is unpreserved for appellate review, "as he failedto raise the issue or move to withdraw his plea despite indicating on the record that he was awarethat there could be immigration consequences to pleading guilty" (People v Sanchez, 152 AD3d 548,548 [2017]; see People v Pastor, 28NY3d 1089, 1091 [2016]; People vFernandez, 148 AD3d 1052, 1052 [2017]). In any event, that contention is withoutmerit, as the record of the plea proceeding indicates that the court fulfilled its obligation under People v Peque (22 NY3d 168[2013]) by advising the defendant that as a result of pleading guilty he could be deported (seeid. at 197; People v Sanchez, 152 AD3d at 548). Contrary to the defendant'scontention, the court's admonition that the defendant "could" be deported was not misleading,notwithstanding that the defendant was mandatorily deportable as a result of his plea and thatdefense counsel informed the defendant that a felony conviction "would" result in deportation."[N]othing in Peque . . . would require a plea court to ascertain whether aparticular conviction carries mandatory deportation under federal law and advise a defendantaccordingly" (People v Manuel, 143AD3d 473, 474 [2016]). "In any event, even where deportation is legally mandatory, as apractical matter it still requires the immigration authorities to take the necessary actions, and thusthe deportation consequences of [a] defendant's plea could fairly be characterized as likely ratherthan absolutely certain" (People vJimenez, 150 AD3d 408, 409 [2017]).
A defendant has the right to the effective assistance of counsel under both the federal andstate constitutions (see People vTurner, 5 NY3d 476, 479 [2005]; People v Bassi, 111 AD3d 845, 845 [2013]; People v Bodden, 82 AD3d 781,783 [2011]; US Const Amend VI; NY Const, art I, § 6). To prevail on a claim ofineffective assistance of counsel under the federal standard set forth in Strickland vWashington (466 US 668 [1984]), a defendant "must show that counsel's representation fellbelow an objective standard of reasonableness" and "that the deficient performance prejudicedthe defense" (id. at 687). To prevail on a claim of ineffective assistance of counsel underthe state standard, a defendant must show that he was not afforded "meaningful representation"(People v Baldi, 54 [*2]NY2d 137, 147 [1981]). The statestandard, like the federal standard, entails a two-pronged test, "with the first prong identical to itsfederal counterpart" (People vGeorgiou, 38 AD3d 155, 160-161 [2007]). The second prong of the state standardcontains a "prejudice component [which] focuses on the 'fairness of the process as a whole ratherthan its particular impact on the outcome of the case' " (People v Caban, 5 NY3d 143, 156[2005], quoting People v Benevento, 91 NY2d 708, 714 [1998]).
"In Padilla v Kentucky (559 US 356, 369 [2010]), the United States Supreme Courtapplied the Strickland framework to a defense attorney's advice, or lack thereof, regardingthe immigration consequences of a plea of guilty" (People v Rodriguez, 150 AD3d 1029, 1030 [2017]). ThePadilla Court held "that counsel must inform [his or] her client whether his [or her] pleacarries a risk of deportation" (Padilla v Kentucky, 559 US at 374) and determined "that acriminal defendant whose attorney failed to provide advice as to the immigration consequencesof his [or her] plea of guilty received representation falling below an objective standard ofreasonableness" (People v Picca, 97AD3d 170, 173 [2012]).
Here, the record reflects that defense counsel properly advised the defendant of theimmigration consequences of pleading guilty by informing him that a felony conviction "would"result in his deportation (see Padilla v Kentucky, 559 US 356 [2010]). Contrary to thedefendant's contention, the fact that the court inquired as to whether the defendant understoodthat as a result of his conviction he "could" be deported, and did not advise him that he "would"be deported, did not require counsel to object to or to correct the court's admonition, or to moveto vacate the defendant's plea. Accordingly, the defendant was not deprived of his constitutionalright to the effective assistance of counsel. Mastro, J.P., Balkin, Connolly and Christopher, JJ.,concur.