Defendant Marco Martinez moves for an order, pursuant to Section 440.10 of the Criminal Procedure Law, vacating the defendant’s conviction on the ground of ineffective assistance of counsel. The following papers were read: Notice of Motion — Affirmation of Thomas R. Villecco, Esq. 1-4 Annexed Exhibits — Affirmation of Service Andrew R. Kass, Esq.’s Affirmation in Opposition People’s Memorandum of Law — Annexed Exhibits Affidavit of Service 5-8 DECISION & ORDER Upon the foregoing papers it is hereby ORDERED that the defendant Marco Martinez’s motion to vacate the judgment against him is denied. All other requested relief is denied. Defendant was indicted by Orange County Indictment No. 2018-505, dated August 27, 2018, on five counts: Aggravated Operating a Motor Vehicle while under the Influence of Alcohol (Vehicle and Traffic Law §1192[2-a][b]) (Count 1); Aggravated Operating a Motor Vehicle while under the Influence of Alcohol (Vehicle and Traffic Law §1192[2-a][b]) (Count 2); Operating a Motor Vehicle while under the Influence of Alcohol (Vehicle and Traffic Law §1192[3]) (Count 3); Endangering the Welfare of a Child (Penal Law §260.10[1] (Count 4); and Endangering the Welfare of a Child (Penal Law §260.10[1] (Count 5). On February 5, 2019, the defendant pled guilty to one count of Aggravated Operating a Motor Vehicle while under the Influence of Alcohol in full satisfaction of the five count indictment and with the understanding that the People would not seek an indictment for bail jumping. On April 8, 2019, the defendant was sentenced to 364 days in the Orange County Jail and a three-year conditional discharge. The defendant now claims that the judgment of conviction should be vacated because of ineffective assistance of counsel. Essentially, defendant alleges that his attorney was ineffective because the plea bargain accepted by the defendant involved a sentence of 364 days of incarceration as opposed to a full split (six months of incarceration and five years of probation). Specifically, the defendant alleges that by agreeing to be incarcerated in excess of 180 days, the defendant became ineligible for “cancellation of removal.” Defendant’s “Argument” contains one point which reads as follows: “THIS COURT SHOULD VACATE THE JUDGMENT OF CONVICTION, BECAUSE DEFENSE COUNSEL, WHILE AFFIRMATIVELY REPRESENTING THAT THE PLEA WOULD NOT HAVE IMMIGRATION CONSEQUENCES, FAILED TO ADVISE [DEFENDANT] THAT THE COURT’S PROMISED SENTENCE OF 364 DAYS IN JAIL WOULD RENDER HIM INELIGIBLE FOR CANCELLATION OF REMOVAL AND IGNORED THE PROSECUTOR’S SENTENCING RECOMMENDATION WHICH WOULD HAVE PRESERVED HIS ELIGIBILITY FOR DISCRETIONARY RELIEF” (Affirmation of Thomas R. Villecco, Esq., page 7). Initially, the Court notes that defense counsel did not “ignore the prosecutor’s sentencing recommendation.” The undersigned was the sentencing judge and this Court would not agree to negotiate a sentence of a 6/5 split. As stated by defendant’s then-attorney Kenyon Trachte, Esq., the defendant failed to appear for arraignment which necessitated my issuance of an arrest warrant (see Exhibit H annexed to Affirmation of Thomas R. Villecco, Esq.). Defendant’s former counsel further stated, “Mr. Martinez unfortunately made a very poor decision to fail to appear for arraignment on the indictment, which caused the issuance of a warrant and consideration by the People of filing bail jumping charges against him. Had he shown up, I would have been able to get him the 6/5 split. However, because of the choice he made, he was put in the Orange County Jail and an ICE hold was placed on him. Once the ICE hold was placed on him, there was no possibility of sentencing him to the 6/5 split… the only option offered by the Judge was to take the jail sentence, which avoided state prison. The case was on video and not defensible” (Exhibit H annexed to Affirmation of Thomas R. Villecco, Esq.). To be clear, regardless of what the People recommended to the Court, as the presiding judge I would not approve any plea bargain which included a negotiated sentence of less than 11 months in the Orange County Jail. The defendant’s plea covered a felony bail jumping charge. Rather than facing up to eight years in state prison1, this Court agreed to sentence the defendant to local time. After failing to appear in court for his arraignment, the defendant was not a good candidate for a probationary sentence. Further, defendant’s former counsel Kenyon Trachte, Esq. stated, “I advised Mr. Martinez to consult with his immigration attorney and I believe he had been speaking to someone from Middletown, you will need to check with him about what advice they gave him. The only advice I gave him was that the sentence of 364 days or less would take this offense out of the “aggravated felony” definition. I did not discuss showing moral character for a specified period, as that would have been between him and his immigration attorney. In any event, there was no possibility of receiving the 6/5 split once he made the decision to not show up for arraignment. I too regularly make 440 motions, and I therefore understand the desire to help the clients, however I would suggest we all need to be careful about making factually untrue allegations about an attorney’s representation. I did not in any way reject the 6 months and 5 years of probation, it was taken off the table by the Court when he failed to appear and ended up with an ICE hold” (Exhibit H annexed to Affirmation of Thomas R. Villecco, Esq.). The Court also notes that the defendant claims in his affidavit in support of his motion that he “moved to the United States on a tourist visa” (Affidavit of Marco Martinez-Roman, paragraph 2 [italics added]). The defendant told Probation, as reflected in the PreSentence Investigation Report, that he “moved to the United States on a Student Visa. After his Visa expired, he remained in the United States illegally” (March 25, 2019 PSI Report, page 7 [italics added]). However, the September 15, 2022 decision of the U.S. Court of Appeals, Second Circuit provides as follows: “On September 23, 2019, the Department of Homeland Security (“DHS”) initiated removal proceedings against Martinez, who had entered the United States without inspection. DHS served him with a Notice to Appear (“NTA”) that charged him with removability under section 212(a)(6)(A)(I). That section provides that a noncitizen “present in the United States without being admitted or paroled, or who arrives in the United States at any time or place other than as designated by the Attorney General, is inadmissable” (Roman v. Garland, 49 F.4th 157, 159 [2d Cir. 2022] [italics added]). In addition, the U.S. Immigration Court stated that the defendant, a citizen of Mexico, “arrived in the United States at or near an unknown place, on or about an unknown date, and was not then admitted or paroled after inspection by an immigration officer” (In the Matter of Marco Antonio Martinez Roman, File No.: A 201-347-082 [April 13, 2020], page 1). The defendant is in removal proceedings not for having been convicted of any crime, but for violation of §212(a)(6)(A)(I) of the Immigration and Nationality Act based upon defendant’s illegal entry and presence in the U.S. Undoubtedly, defendant’s convictions for Grand Larceny in the Third Degree in 1999, Driving While Ability Impaired by Alcohol in 2009 (a plea from a DWI arrest), Criminal Possession of a Controlled Substance in the Seventh Degree in 2007, Criminal Possession of a Controlled Substance in the Seventh Degree in 2008, Disorderly Conduct in 2014 (a plea from a Petit Larceny arrest), and Aggravated Operating a Motor Vehicle while under the Influence of Alcohol in 2019 do not support the defendant’s efforts to remain in the United States.2 It is noted that the defendant’s application for cancellation of removal was denied, and the defendant was ordered to be removed by the U.S. Immigration Court without consideration of defendant’s latest conviction for Aggravated Operating a Motor Vehicle while under the Influence of Alcohol (see Exhibit 2 annexed to Andrew R. Kass, Esq.’s Affirmation in Opposition). The decision was affirmed by the Board of Immigration Appeals and remanded by the U.S. Court of Appeals for further consideration based upon the U.S. Immigration Court’s denial of a continuance requested by the defendant. “Notably, because of the defendant’s lack of immigration status, even an outright acquittal on all charges would not…insulate [the defendant] from deportation. Unlike…lawful permanent residents for whom the only basis of removal [is] their criminal convictions, here…the defendant is removable pursuant to section 212(a)(6)(A)(I), since he entered the United States illegally” (People v. Clemente, 58 Misc.3d 266, 273 [Sup. Ct., Bronx County 2017]). A review of the plea minutes from February 5, 2019 reveals the following colloquy: THE COURT: Have you had a full, fair and complete opportunity to speak to anyone important to you but, most importantly, Mr. Trachte about the facts of your case, your plea of guilty, the rights I explained to you earlier, the waiver of those rights, any legal defenses you might have to those charges, the sentence that may be imposed or anything else you feel might be important to you about his case including the potential immigration consequences of this felony plea? Have you had enough time to speak to anyone and everyone about all these issues? THE DEFENDANT: YES. THE COURT:…Are you a citizen of [the] United States of America? THE DEFENDANT: No. THE COURT: So it’s my understanding that you discussed with Mr. Trachte and anyone else that you want to discuss it with, that a plea to a felony, such as this one, may well have immigration consequences to you, correct? THE DEFENDANT: Yes. THE COURT: And you understand that even if you are going to be deported solely because of this case, that will not be a basis for you to withdraw your guilty plea; do you understand that? THE DEFENDANT: Yes. (February 5, 2019 Plea Minutes, pages 12-13). In addition, a review of the sentencing minutes from April 8, 2019 reveals the following colloquy: THE COURT: Mr. Trachte. MR. TRACHTE: Yes, your Honor. I had the opportunity to review the presentence investigation report. I don’t have any corrections. I believe it demonstrates that he is genuinely remorseful about the decision he made that day, and obviously he’s going to have immigration consequences to deal with. (April 8, 2019 Sentencing Minutes, page 3). The defendant has “failed to satisfy the requirement of prejudice (see Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S.CT. 366, 88 L.Ed.2d 203 [1985]; People v. Parson, 27 NY3d 1107, 1108, 26 NYS3d 85, 55 NE3d 1058 [2016]). During the plea allocution, the court specifically warned defendant that [even if he was 'going to be deported solely because of this case, that will not be a basis to withdraw your guilty plea.']…Under these circumstances, the evidence does not support defendant’s claim that he was prejudiced by any failure by counsel” (People v. De LaRosa, 211 AD3d 588, 589 [1st Dept., 2022]).3 Rather, “the evidence, the law, and the circumstances of the case, viewed in totality as of the time of the representation, reveal that [defendant's] counsel provided meaningful representation” (People v. Thomas, 131 AD3d 551, 552 citing People v. Caban, 5 NY3d at 152; People v. Berroa, 99 NY2d 134, 138-139 [2002]; People v. Benevento, 91 NY2d 708, 712 [1998]; People v. Baldi, 54 NY2d 137, 147 [1981]; People v. McDonald, 79 AD3d 771, 772 [2010]). It is uncontroverted that the defendant’s crime was captured on video and was not defensible. Further, the defendant accepted an advantageous plea agreement, which kept him out of state prison and avoided a felony bail jumping charge. The sentence that defendant received was far less than the statutory maximum. “When, as in this case, a defendant receives an advantageous plea agreement and the record does not cast doubt on the apparent effectiveness of counsel, the defendant is deemed to have been furnished with meaningful representation” (People v. Hall, 224 AD2d 710 [2nd Dept., 1996] citing People v. Boodhoo, 191 AD2d 448, 593 NYS2d 882; see also, People v. Lange, 21 Misc.3d 6 [Appellate term, 9th & 10th Judicial Districts, 2008]; People v. Lee, 51 AD3d 1217 [3rd Dept., 2008]; People v. Terrero, 198 AD3D 930 [2nd Dept., 2021]). In addition, “in moving to vacate a judgment of conviction, a defendant must ‘come forward with allegations that raise a triable issue of fact sufficient to challenge the presumed validity of a judgment of conviction’” (People v. Vasquez, 134 AD3d 742, 744 quoting People v. Waymon, 65 AD3d 708, 709 [2009] and citing CPL §440.10, §440.30 [4][d][I]; People v. Session, 34 NY2d 254, 255-256 [1974]). The allegations of the defendant are not supported by any affidavit or evidence other than defendant’s affidavit. Further, “under all the circumstances attending the case, there is no reasonable possibility that such allegations are true” (People v. Smiley, 67 AD3d 713 [2nd Dept., 2009] citing CPL §440.30[4][d] and People v. Green, 200 AD2d 687, 687, 505 NYS2d 781; People v. Pachay, 185 AD2d 287, 287, 587 NYS2d 212; see also, People v. Leftenant, 121 AD3d 1019 [2nd Dept., 2014]). Thus, the defendant’s motion must be denied (see People v. Campbell, 148 AD3d 821 [2nd Dept., 2017]). Finally, the defendant claims that he involuntarily pled guilty and that his conviction must be vacated. However, the record clearly and unequivocally demonstrates that the defendant’s plea of guilty was knowingly, voluntarily, and intelligently entered (see People v. Seeber, 4 NY3d 780 [2005], 793 NYS2d 826, 826 NE2d 797; People v. Boria, 157 AD3d 811 [2nd Dept., 2018] citing People v. Dazzo, 92 AD3d 796, 796-797, 938 NYS2d 446; People v. Caruso, 88 AD3d 809, 810, 930 NYS2d 668; People v. Jackson, 87 AD3d 552, 553, 928 NYS2d 58; People v. Douglas, 83 AD3d 1092,1093, 921 NYS2d 324). Further, the defendant’s conviction is not unconstitutional or otherwise invalid. Accordingly, for all of the aforestated reasons, the defendant’s application must be denied. APPEAL RIGHTS The defendant is hereby advised of his right to apply to the Appellate Division, Second Department, 45 Monroe Place, Brooklyn, New York 12201 for a certificate granting leave to appeal from this Order. That application must be made within thirty days of service of this Order/Decision. Upon proof of financial inability to retain counsel and to pay the costs and expenses of the appeal, the defendant may apply to the Appellate Division for the assignment of counsel and for leave to prosecute the appeal as a poor person and to dispense with printing. Application for poor person relief will be entertained only if and when permission to appeal or a certificate granting leave to appeal is denied. The foregoing constitutes the Decision and Order of the Court. So Ordered. Dated: April 4, 2023
