The defendant seeks an order of this court pursuant to CPL §440.10(1)(h) vacating : 1) under docket number 88-1974, the judgment of conviction of criminal possession of a controlled substance in the seventh degree, pursuant to Penal Law §220.03, taken upon defendant’s plea of guilty before the City Court, City of Mount Vernon on July 1, 1988 and entered that date upon his sentence to a 1 year conditional discharge; and 2) under docket number 95-2418, the judgment of conviction of criminal ossession of a controlled substance in the seventh degree pursuant to Penal Law §220.03, taken upon defendant’s plea of guilty before the City Court, City of Mount Vernon on October 3, 1996. On April 3, 1997, defendant was sentenced to 3 years probation.Now more than twenty years later, defendant seeks to vacate the aforementioned convictions on the grounds that his plea was not knowingly and voluntarily entered because he was not informed by his counsels or the trial court of the immigration consequences of his pleas. These motions will be consolidated for decision.By these motions, defendant asserts that he is currently undocumented, but aspires to attain permanent residence and full work authorization in the United States. He claims to be the father of six children, and he claims to have married a United States citizen on March 17, 2017. According to defendant, he received ineffective assistance of counsel under both the federal and New York standards, since neither plea attorney ever discussed immigration consequences that attached to each guilty plea. As a direct result of each conviction, defendant claims that he is ineligible for adjustment of status and if deported, he will face permanent exclusion from the United States. In addition, defendant accuses each attorney of failing to secure a disposition in each case that did not carry immigration consequences. Alternatively, defendant accuses this court of failing to properly warn him of the immigration consequences that attached to each guilty plea.In determining whether a CPL §440.10 motion is meritorious, the court must grant the motion without conducting a hearing if the moving papers allege a ground constituting a legal basis for the motion (CPL §440.30[3][a]), which ground, if factually based, is supported by sworn allegations of fact (CPL §440.30[3][b]), and the sworn factual allegations essential to the motion are either conceded by the People or are conclusively substantiated by unquestionable documentary proof. (CPL §440.30[3][c]).The court may, nonetheless, upon reaching the merits still deny the motion without a hearing, if the moving papers, inter alia, fail to allege a ground constituting a legal basis for the motion (CPL §440.30[4][a]) or fail to allege sufficient facts to support the legal ground asserted (CPL §440.30[4][b]; People v. Session, 34 NY2d 254, 255-256 [1974]). The motion may also be denied if an allegation of fact essential to support the motion (i) is contradicted by a court record or other official document or is made solely by the defendant and is unsupported by any other affidavit or evidence, and (ii) under these and all of the other circumstances attending the case, there is no reasonable possibility that such allegation is true. (CPL §440.30[4][d]). Only in the event that the court does not determine the motion pursuant to the other provisions of CPL §440.30 must a hearing be conducted. (CPL §440.30[5]).The United States Constitution affords a defendant in a criminal case the guarantee of effective assistance of counsel to mount a defense. (U.S. Const., amend. VI). In order to establish a constitutional violation under the federal Sixth Amendment standard, a defendant must satisfy a two-pronged test, demonstrating first, “that counsel’s representation fell below an objective standard of reasonableness” (Strickland v. Washington, supra, 466 US 668, 688[1984]), and second, that the defendant suffered prejudice, that is, “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Id., at 694). The Supreme Court has explained that:a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct…. [T]he court should keep in mind that counsel’s function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. (Id., at 690).A defendant’s guilty plea will be upheld if it is a voluntary and intelligent choice made with the understanding of the various alternative courses of action available. (Hill v. Lockhart, 474 US 52, 56 [1985]). Where the conviction was by plea, a defendant’s allegations of ineffective assistance of counsel “must be sufficient to show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.’” (Id., at 59; People v. McDonald, 1 NY3d 109, 115 [2003]).In Padilla v. Kentucky, 559 US 356, (2010), the United States Supreme Court was presented with the issue whether defense counsel, to be constitutionally effective, had an obligation to advise the defendant that his plea of guilty to a controlled substance offense would result in his automatic deportation. (Padilla v. Kentucky, supra, 130 SCt. at 1478).In evaluating the petitioner’s claim, the Supreme Court reviewed the history of federal immigration law, noting the dramatic changes in its landscape over the course of the past ninety years, and the concurrent expansion of the class of deportable offenses and constriction in authority of the courts to alleviate the harsh consequences of deportation (removal). (Id., at 1478). Notable among the changes cited by the Supreme Court were the elimination by Congress in 1990 of the procedure known as judicial recommendation against deportation (JRAD), under which sentencing courts could recommend that a foreign national not be deported; the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214; and the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, 110 Stat. 30094, in which Congress eliminated the attorney general’s authority to grant discretionary relief from deportation, the exercise of which had prevented the deportation of 10,000 noncitizens in the five-year period preceding 1996. (Id., at 1479 [citing INS v. St. Cyr, 533 US 289, 296 (2001)]). The Padilla court concluded that:These changes confirm our view that, as a matter of federal law, deportation is an integral part — indeed, sometimes the most important part — of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes. (Id., at 1481).In Padilla, the Supreme Court rejected the view of the Kentucky Supreme Court, widely shared among the federal Circuit Courts of Appeals and many state courts, that defense counsel has no constitutional obligation to inform a defendant prior to the entry of a guilty plea of the possible deportation resulting from the criminal conviction because such consequences are merely collateral to the criminal proceeding. (Id., at 1481). The Court eschewed any distinction between direct and collateral consequences in the standard for “reasonable professional assistance” in its Strickland jurisprudence, and declined to so categorize the issue before it. (Id., quoting Strickland, supra, 466 at 689). Characterizing deportation as a “particularly severe penalty’” which is “intimately related to the criminal process” (id. [citation omitted]), and assessing its severity as ” the equivalent of banishment or exile’” (id., at 1486 [citation omitted]), the Padilla Court observed that deportation or removal is now practically automatic for a broad class of noncitizen offenders, making it difficult to divorce the deportation penalty from the conviction itself. (Id. [citation omitted]). For these reasons, the Supreme Court found that categorizing deportation in terms of a collateral-versus-direct consequence distinction is “ill-suited to evaluating a Strickland claim concerning the specific risk of deportation,” and “advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel.” (Id., at 1482). The Court held that under Strickland, “counsel must inform her client whether his plea carries a risk of deportation.” (Id., at 1486). The Padilla Court did not, however, expressly declare whether its decision is to be applied retroactively to cases on collateral review, which is the threshold question. (Teague v. Lane, 489 US 288, 300 [1989]).Subsequent court rulings have not applied Padilla retroactively to convictions that became final before the case was decided (Chaidez v. United States, 133 S. Ct. 1103 [2013]; People v. Baret, 23 NY3d 777 [2014]). Since defendant’s convictions under docket numbers 88-1974 and 95-2418 were final well before the Supreme Court decided Padilla in 2010, the Supreme Court’s decision in Chaidez and the Court of Appeals’ decision in Baret exclude defendant’s reliance upon Padilla and its progeny. Since the holding in Padilla does not apply to defendant’s convictions, the effectiveness of defendant’s counsel will be judged as of the time of the representation (People v. Baldi, 54 NY2d 137, 141 [1981]). Even if it were true that both of defendant’s counsels did not tell defendant about the immigration consequences of his guilty pleas, New York law, when the pleas were taken, was clear: counsel was not ineffective for failing to discuss potential immigration consequences of pleas with noncitizen defendants (People v. Holder, 32 AD3d 734 [1st Dept 2006], lv denied 8 NY3d 846 [2007]). Defendant is not, therefore, entitled to relief on this ground.Petitioner also contends that his pleas should be vacated because the allocution conducted by the court in each case was inadequate to establish that the plea was knowing and voluntary and had a factual basis under the standards set forth in Boykin v. Alabama (395 US 238 [1969]) and People v. Fiumefreddo (82 NY2d 536 [1993]). Collateral review is not available under CPL 440.10 when the issue presented could have been raised on direct appeal (CPL 440.10 [2] [c]). The minutes of the defendant’s pleas on both the 1988 case and his 1997 case were not provided to the court, however, any allegations of deficiencies would have been cognizable on direct appeal (People v. Aleman, 43 AD3d 756 [1st Dept 2007]). Even if no appeal was available to petitioner as a matter of law, he could still have appealed, invoking the interest of justice jurisdiction of the intermediate appellate courts (People v. Pearson, 55 AD3d 314 [1st Dept 2008] [conviction reversed in the interest of justice in light of the "extreme deficiency of the plea allocution"]).Additionally, the defendant provided neither an affidavit from any of his prior attorneys nor explained his efforts to obtain them. Since defendant’s attorneys are the only individuals from whom evidence substantiating defendant’s claims can be adduced, and no affidavits from his attorneys have been provided in support of defendant’s motion, defendant has failed to meet his burden of establishing that his counsels’ performances were ineffective. Defendant’s motion is based solely upon unsupported self-serving statements that he was not advised by any of his counsels of the required elements and/or potential defenses to the charges filed against him or the fact that he would face possible deportation if he plead guilty.Defendant has failed to establish an ineffective assistance of counsel claim for neither of the two dockets. Defendant has also failed to establish that his guilty pleas were not entered into voluntarily, knowingly and intelligently. Based upon the foregoing, defendant has failed to establish that he is entitled to vacatur of the judgments on docket numbers 88-1974 and 95-2418 under CPL §440.10.Accordingly, defendant’s motion to vacate his convictions are denied.Dated: April 10, 2018Mount Vernon, New York
