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People v. Alexander

Supreme Court of New York, Second Department

March 28, 2018

The People, etc., respondent,
v.
Kwane Alexander, appellant. Ind. No. 9119/11

          Submitted - December 1, 2017

         D54924 N/hu

          Paul Skip Laisure, New York, NY, for appellant.

          Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Solomon Neubort of counsel), for respondent.

          WILLIAM F. MASTRO, J.P. RUTH C. BALKIN FRANCESCA E. CONNOLLY LINDA CHRISTOPHER, JJ.

          DECISION & ORDER

         Appeal by the defendant from a judgment of the Supreme Court, Kings County (Ann Donnelly, J.), rendered July 9, 2013, convicting him of attempted murder in second degree, upon his plea of guilty, and imposing sentence.

         ORDERED that the judgment is affirmed.

         The defendant's contention that the Supreme Court failed to properly advise him of the immigration consequences of his plea of guilty is unpreserved for appellate review, "as he failed to raise the issue or move to withdraw his plea despite indicating on the record that he was aware that there could be immigration consequences to pleading guilty" (People v Sanchez, 152 A.D.3d 548, 548; see People v Pastor, 28NY3d 1089, 1091; People v Fernandez, 148 A.D.3d 1052, 1052). In any event, that contention is without merit, as the record of the plea proceeding indicates that the court fulfilled its obligation under People v Peque (22 N.Y.3d 168) by advising the defendant that as a result of pleading guilty he could be deported (see id. at 197; People v Sanchez, 152 A.D.3d at 548). Contrary to the defendant's contention, the court's admonition that the defendant "could" be deported was not misleading, notwithstanding that the defendant was mandatorily deportable as a result of his plea and that defense counsel informed the defendant that a felony conviction "would" result in deportation. ''[N]othing in Peque would require a plea court to ascertain whether a particular conviction carries mandatory deportation under federal law and advise a defendant accordingly" (People v Manuel, 143 A.D.3d 473, 474). "In any event, even where deportation is legally mandatory, as a practical matter it still requires the immigration authorities to take the necessary actions, and thus the deportation consequences of [a] defendant's plea could fairly be characterized as likely rather than absolutely certain'' (People v Jimenez, 150 A.D.3d 408, 409).

         A defendant has the right to the effective assistance of counsel under both the federal and state constitutions (see People v Turner, 5 N.Y.3d 476, 479; People v Bassi, 111 A.D.3d 845, 845; People v Bodden, 82 A.D.3d 781, 783; U.S. Const Amend VI; NY Const, art I, § 6). To prevail on a claim of ineffective assistance of counsel under the federal standard set forth in Strickland v Washington (466 U.S. 668), a defendant "must show that counsel's representation fell below an objective standard of reasonableness" and "that the deficient performance prejudiced the defense" (id. at 687). To prevail on a claim of ineffective assistance of counsel under the state standard, a defendant must show that he was not afforded "meaningful representation" (People v Baldi, 54 N.Y.2d 137, 147). The state standard, like the federal standard, entails a two-pronged test, "with the first prong identical to its federal counterpart" (People v Georgiou, 38 A.D.3d 155, 160-161). The second prong of the state standard contains a "prejudice component [which] focuses on the 'fairness of the process as a whole rather than its particular impact on the outcome of the case'" (People v Caban, 5 N.Y.3d 143, 156, quoting People v Benevento, 91 N.Y.2d 708, 714).

         "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" (People v Rodriguez, 150 A.D.3d 1029, 1030). The Padilla court held "that counsel must inform [his or] her client whether his [or her] plea carries a risk of deportation" (Padilla v Kentucky, 559 U.S. at 374) and determined "that a criminal defendant whose attorney failed to provide advice as to the immigration consequences of his [or her] plea of guilty received representation falling below an objective standard of reasonableness" (People v Picca, 97 A.D.3d 170, 173).

         Here, the record reflects that defense counsel properly advised the defendant of the immigration consequences of pleading guilty by informing him that a felony conviction "would" result in his deportation (see Padilla v Kentucky,559 U.S. 356). Contrary to the defendant's contention, the fact that the court inquired as to whether the defendant understood that as a result of his conviction he "could" be deported, and did not advise him that he "would" be deported, did not require counsel to obj ect to or to correct the court's admonition, or to move to vacate the ...


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