| People v Marte-Feliz |
| 2021 NY Slip Op 01810 [192 AD3d 1397] |
| March 25, 2021 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Pedro Marte-Feliz, Appellant. |
Danielle Neroni Reilly, Albany, for appellant.
P. David Soares, District Attorney, Albany (Emily Schultz of counsel), for respondent.
Pritzker, J. Appeal, by permission, from an order of the Supreme Court (McDonough, J.),entered April 21, 2020 in Albany County, which denied defendant's motion pursuant to CPL440.10 to vacate the judgment convicting him of the crime of criminal sale of a controlledsubstance in the third degree, without a hearing.
In satisfaction of a one-count indictment, defendant, a noncitizen of the United States,pleaded guilty to criminal sale of a controlled substance in the third degree and waived his rightto appeal. In accordance with the terms of the plea agreement, he was sentenced to six years inprison, followed by two years of postrelease supervision. He subsequently made an unsuccessfulpro se motion pursuant to CPL 440.20 to set aside the sentence. Thereafter, his counsel movedpursuant to CPL 440.10 to vacate the judgment of conviction on the grounds that defendant wasdenied the effective assistance of trial counsel and that his guilty plea was not knowingly,voluntarily and intelligently entered. Supreme Court denied the motion without a hearing. ThisCourt granted defendant permission to appeal.
Supreme Court did not abuse its discretion in denying defendant's CPL 440.10 motion tovacate the judgment of conviction without a hearing. On a motion to vacate a judgment ofconviction under CPL 440.10, "a hearing is only required if the submissions show that thenonrecord facts sought to be established are material and would entitle the defendant to relief"(People v Vargas, 173 AD3d1466, 1468 [2019] [internal quotation marks and citations omitted], lv denied 34NY3d 955 [2019]; see People vStanley, 189 AD3d 1818, 1819 [2020]). Furthermore, "[a] court may deny a vacaturmotion without a hearing if it is based on the defendant's self-serving claims that are contradictedby the record or unsupported by any other evidence" (People v Vargas, 173 AD3d at1468; see People v Stanley, 189 AD3d at 1819; People v Guynup, 159 AD3d 1223, 1225 [2018], lv denied31 NY3d 1082 [2018]).
Defendant's primary contention is that he was denied the effective assistance of counselbecause trial counsel did not advise him of the immigration consequences of his guilty plea and,thus, his plea was not knowing, intelligent and voluntary. Given that defendant's ineffectiveassistance of counsel claim impacts the voluntariness of his plea, it is not precluded by hisunchallenged waiver of the right to appeal and was preserved by an appropriate postallocutionmotion (see People v Manley, 167AD3d 1161, 1162 [2018]; People vAchouatte, 91 AD3d 1028, 1028-1029 [2012], lv denied 18 NY3d 954 [2012],cert denied 568 US 861 [2012]). Given defendant's status as a resident alien, underfederal law his conviction of criminal sale of a controlled substance in the third degree subjectedhim to deportation (see 8 USC § 1227 [a] [2] [B] [i]; Penal Law§ 220.39 [1]; People vCarty, 96 AD3d 1093, 1094 [2012]). In Padilla v Kentucky (559 US 356,366-374 [2010]), a case relied heavily upon [*2]by defendant, theSupreme Court of the United States held that where the immigration consequences of a guiltyplea are clear and would result in mandatory deportation, defense counsel is required toaccurately advise a noncitizen client that the guilty plea carries with it the risk of deportation (see People v Lawrence, 148 AD3d1472, 1473 [2017]; People v Carty, 96 AD3d at 1093-1094). If defense counsel failsto do so, "then counsel's representation would fall below an objective standard of reasonablenessand thereby satisfy the first prong of the test [set forth in Padilla] for determining whether[a] defendant was deprived of his [or her] constitutional right to the effective assistance ofcounsel" (People v Oouch, 97 AD3d904, 905 [2012]; see People v Carty, 96 AD3d at 1093-1094). Under Padilla,the second prong of the test "requires a determination of whether 'there is a reasonableprobability that, but for counsel's unprofessional errors, the result of the proceeding would havebeen different' " (People v Oouch, 97 AD3d at 905, quoting Strickland vWashington, 466 US 668, 694 [1984]; see People v Carty, 96 AD3d at 1094).
In support of his CPL 440.10 motion, defendant submitted, among other things, theaffirmation of his appellate counsel, his own affidavit and the transcripts of the plea andsentencing proceedings. These submissions set forth that defendant speaks little English and histrial counsel did not meet with him privately with an interpreter to discuss the case and did notdisclose the deportation consequences that would most certainly result from his guilty plea.However, the transcript of defendant's plea proceeding reflects that defendant was assisted by aninterpreter and that Supreme Court specifically inquired as to whether defendant understood, andif he had discussed with his attorney, "that [his] conviction may likely result in [his] deportation."Defendant answered in the affirmative. Later in the proceedings, the court asked defendantwhether he understood "that the statements that you make here today may be used against you insubsequent judicial proceedings, [i]ncluding deportation proceedings?" Defendant once againanswered in the affirmative.[FN*] In view of the foregoing, defendant's assertionthat his counsel did not advise him of the deportation consequences of his guilty plea is belied bythe record; instead, it is based on his own self-serving statements and not upon any evidenceestablishing that his counsel was ineffective under the two-prong test set forth in Padilla(see People v Lawrence, 148 AD3d at 1474; People v Castro, 133 AD3d 986, 987 [2015]; compare People v Perez, 185 AD3d1156, 1158-1159 [2020]).
Defendant also alleges ineffective assistance of counsel due to counsel's failure to advise himof potential affirmative defenses. The only proof submitted in support of this portion ofdefendant's motion are an affirmation of defendant's appellate counsel and an affidavit ofdefendant, both of which [*3]are conclusory, self-serving andcontradicted by the record of the plea proceeding (see People v Robles, 172 AD3d 1780, 1781-1782 [2019], lvdenied 34 NY3d 983 [2019]; Peoplev Passino, 25 AD3d 817, 819 [2006], lv denied 6 NY3d 816 [2006]). Moreover,the record reveals that counsel negotiated a favorable plea that exposed defendant to less than themaximum sentence, and otherwise advocated vigorously on his behalf (see People vBaldi, 54 NY2d 137, 147 [1981]; see People v Taylor, 156 AD3d 86, 91 [2017], lv denied 30NY3d 1120 [2018]). Consequently, under these circumstances, Supreme Court did not abuse itsdiscretion in denying defendant's CPL 440.10 motion without a hearing.
Egan Jr., J.P., Clark, Aarons and Colangelo, JJ., concur. Ordered that the order isaffirmed.
Footnote *:Although Supreme Courtneglected to have defendant sworn in at the commencement of the proceedings, it did so at theend and defendant confirmed that everything he stated during the proceedings was true.