Law Offices of Christopher J. Cassar, P.C., Huntington, NY,
J. Spota, District Attorney, Riverhead, NY (Karla Lato of
counsel), for respondent.
E. CHAMBERS, J.P., SANDRA L. SGROI, COLLEEN D. DUFFY, BETSY
DECISION & ORDER
by the defendant (1) from a judgment of the Supreme Court,
Suffolk County (Cohen, J.), rendered April 4, 2013,
convicting her of driving while intoxicated in violation of
Vehicle and Traffic Law § 1192(2) and aggravated
unlicensed operation of a motor vehicle in the third degree,
upon her plea of guilty, and imposing sentence, and (2), by
permission, from an order of the same court dated October 2,
2014, which denied, without a hearing, her motion pursuant to
CPL 440.10 to vacate the judgment rendered April 4, 2013.
that the judgment and the order are affirmed.
defendant, a citizen of El Salvador, pleaded guilty to
driving while intoxicated in violation of Vehicle and Traffic
Law § 1192(2) and aggravated unlicensed operation of a
motor vehicle in exchange for a sentence that included a
conditional discharge. The Supreme Court subsequently imposed
sentence on April 4, 2013, in accordance with the terms of
the plea agreement. The defendant appeals.
one year after sentencing, the defendant moved to vacate the
judgment of conviction pursuant to CPL 440.10. She submitted,
inter alia, her own affidavit, in which she stated that the
Supreme Court "never informed [her] of the immigration
consequences of this plea, " and that her attorney never
answered her questions "regarding whether pleading
guilty would have any immigration consequences." In an
order dated October 2, 2014, the court denied, without a
hearing, the defendant's motion to vacate the judgment.
By decision and order on application dated August 3, 2015, a
Justice of this Court granted leave to appeal.
to the defendant's contention, the record of the plea
proceeding confirms that the Supreme Court fulfilled its
independent constitutional obligation to ascertain whether
the defendant's plea was voluntary by alerting her that
she would be deported as a consequence of pleading guilty
(see generally People v Peque, 22 N.Y.3d 168,
Supreme Court also properly denied, without a hearing, the
defendant's motion pursuant to CPL 440.10 to vacate the
judgment on the ground that the defendant received
ineffective assistance of counsel under the United States
Constitution. To prevail on a claim of ineffective assistance
of counsel under the Sixth Amendment of the United States
Constitution, the defendant must satisfy the two-prong
standard of Strickland v Washington (466 U.S. 668,
687). "First, the defendant must show that counsel's
performance was deficient.... Second, the defendant must show
that the deficient performance prejudiced the defense"
(id. at 687). In Padilla v Kentucky (559
U.S. 356, 369), the United States Supreme Court applied the
Strickland framework to a defense attorney's
advice, or lack thereof, regarding the immigration
consequences of a plea of guilty, reasoning that modern
immigration law made the possibility of deportation so
central to a noncitizen defendant's decision to plead
guilty that defense counsel had to inform the defendant about
it prior to his or her plea of guilty (see People v
Hernandez, 22 N.Y.3d 972, 975).
although the defendant contends that her attorney failed to
advise her that pleading guilty would lead to her
deportation, the record demonstrates that the defendant was
properly advised of this consequence by the Supreme Court.
Under the circumstances of this case, even if defense counsel
failed to advise the defendant of the possible immigration
consequences of pleading guilty, the defendant was
indisputably aware of those possible consequences before she
entered her plea. Accordingly, under the federal standard for
a claim of ineffective assistance of counsel, the only
standard invoked by the defendant in support of her motion
and on appeal, the defendant cannot show prejudice resulting
from her attorney's alleged failure to provide that
advice herself (see People v Rampersaud, 121 A.D.3d
721, 722-723). In other words, there is no reasonable
probability that the defendant would not have pleaded guilty
but for counsel's alleged deficiency (see People v
Hernandez, 22 N.Y.3d at 976; compare People v
Rampersaud, 121 A.D.3d 721, with People v
Roberts, 143 A.D.3d 843).
defendant's remaining contentions are without merit.
CHAMBERS, J.P., SGROI, DUFFY and ...