Submitted - December 1, 2017
Skip Laisure, New York, NY, for appellant.
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
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.
that the judgment is affirmed.
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).
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).
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).
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 ...