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The People of the State of v. Rosa Cruz

State of New York Supreme Court, Appellate Division Third Judicial Department


November 15, 2012

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
ROSA CRUZ, APPELLANT.

The opinion of the court was delivered by: Lahtinen, J.

MEMORANDUM AND ORDER

Calendar Date: October 10, 2012

Before: Mercure, J.P., Lahtinen, Kavanagh, McCarthy and Garry, JJ.

Appeal, by permission, from an order of the County Court of Albany County (Breslin, J.), entered March 24, 2011, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment convicting her of the crime of offering a false instrument for filing in the first degree, without a hearing.

Defendant, a citizen of El Salvador, pleaded guilty in 2002 to offering a false instrument for filing in the first degree and was sentenced to five years of probation. In 2011, she moved pursuant to CPL 440.10 to vacate the judgment of conviction on the ground that she was not adequately informed, before she entered her guilty plea, of the consequences that her guilty plea would have upon her immigration status. County Court denied the motion without a hearing and defendant obtained permission from this Court to appeal.

We affirm. Significantly, the written statement that defendant submitted in support of her motion does not contain "'sworn allegations substantiating or tending to substantiate all the essential facts'" providing the basis for her claim (People v Haley, 96 AD3d 1168, 1168 [2012], quoting CPL 440.30 [4] [b]; see People v Faulkner, 40 AD3d 1207, 1208 [2007], lv denied 9 NY3d 961 [2007]; People v Dearstyne, 305 AD2d 850, 853 [2003], lv denied 100 NY2d 593 [2003]). Defendant has not provided an explanation for this omission nor has she submitted any other affidavits or documents in support of her motion. Notably, her written statement appears to have been prepared in connection with deportation proceedings conducted in another venue and not for the purpose of the instant motion. In any event, a review of the minutes of the plea proceedings discloses that defendant was advised that her guilty plea "may have some impact on her immigration status," contrary to the representations contained in her written statement. Accordingly, the order summarily denying her CPL 440.10 motion must be affirmed.

Mercure, J.P., Kavanagh, McCarthy and Garry, JJ., concur.

ORDERED that the order is affirmed.

ENTER:

Robert D. Mayberger Clerk of the Court

20121115

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