| People v Manley |
| 2018 NY Slip Op 08581 [167 AD3d 1161] |
| December 13, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Dujon Manley, Appellant. |
Rural Law Center of New York, Castleton (Kelly L. Egan of counsel), for appellant, andappellant pro se.
Jason M. Carusone, District Attorney, Lake George (Rebecca Nealon of counsel), forrespondent.
Devine, J. Appeal, by permission, from an order of the County Court of Warren County (HallJr., J.), entered January 31, 2017, which denied defendant's motion pursuant to CPL 440.10 tovacate the judgment convicting him of the crime of criminal possession of a controlled substancein the third degree, after a hearing.
In July 2014, defendant, a noncitizen of the United States, was charged with two counts ofcriminal sale of a controlled substance in the third degree and two counts of criminal possessionof a controlled substance in the third degree. Following plea negotiations, he pleaded guilty toone count of criminal possession of a controlled substance in the third degree, waived his right toappeal and received a sentence of three years in prison, followed by two years of postreleasesupervision. At the time of the plea, defendant had overstayed his legal right to be in the UnitedStates. In 2015, after deportation proceedings were commenced against him, defendant movedpro se to vacate the judgment of conviction pursuant to CPL 440.10, contending, as pertinenthere, that his plea was involuntary because counsel had ineffectively represented him bymisinforming him of the deportation consequences of his plea. Following a hearing, CountyCourt denied the motion. By permission of this Court, defendant now appeals.
Initially, insofar as defendant's ineffective assistance claim implicates the voluntariness of hisplea, such claim survives his unchallenged appeal waiver and was preserved by his pro sepostallocution motion (see People vAbraham, 165 AD3d 1318, 1319 [2018]). Defendant focuses upon an ineffectiveassistance of counsel claim under the Federal Constitution that, in the guilty plea context,requires him to demonstrate that counsel's performance was deficient and "that there is areasonable probability that, but for counsel's errors, he would not have pleaded guilty and wouldhave insisted on going to trial" (Hill v Lockhart, 474 US 52, 59 [1985]; see USConst 6th Amend; Strickland v Washington, 466 US 668, 687 [1984]; People v Hernandez, 22 NY3d972, 974-975 [2013], cert denied 572 US 1070 [2014]).
At the hearing, defendant and his wife testified that counsel told them that the "best" or"only" option for defendant was to accept the plea offer because, even if he went to trial and wasacquitted of the charges, he would not avoid deportation. Defendant claimed that his onlyconcern was deportation and that he did not care about the risk of a long prison term. Counseltestified that he advised defendant that, regardless of whether he pleaded guilty to criminal saleof a controlled substance in the third degree or criminal possession of a controlled substance inthe third degree, it was "[m]ore than likely" that he would be deported. He also testified that heinformed defendant that, if convicted after trial, he would be sentenced to a prison term of up to18 years. Counsel did not recall telling defendant that he would be deported even if he wereacquitted of the charges. According to counsel, although there would be proceedings regardingdefendant's immigration status, this circumstance would be a "different ball game," as defendantwould not have been convicted of crimes subjecting him to removal under federal law. Deferringto County Court's credibility determinations (see People v Watson, 152 AD3d 1059, 1060 [2017], lvdenied 30 NY3d 954 [2017]), we find that counsel fulfilled his obligations under Padillav Kentucky (559 US 356, 374 [2010]) and that defendant's plea was voluntary. Accordingly,County Court did not abuse its discretion when it denied defendant's CPL 440.10 motion.
McCarthy, J.P., Egan Jr., Lynch and Clark, JJ., concur. Ordered that the order isaffirmed.