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A plea agreement was made and entered into by the defendant

On 14 February 1990 at approximately 6:15 p.m., criminal defendant and another individual acting together, was observed by a police officer selling crack coccaine to three persons. The three buyers were seen talking to the defendant and his partner and each gave a sum of money to defendant’s partner, whereupon defendant handed, in exchange for the money, a quantity of crack coccaine to each of the buyers. Arrest were made and officers recovered from inde defendant’s mouth, four small clear plastic bags containing crack and coccaine and same drug was recovered from the defendant and his partner.

A plea agreement was made and entered into by the defendant and pleasd guilty to Penal Law section 220.31 CSCS in the 5th degree. As a result, defendant was sentenced to two to four years incarceration running concurrent with one and one- third to four years incarceration for violation of probation on Kings County. Defendant was adjudicated as second felony offender at the time of his plea in this case.

At the time of the plea agreement, defendant was 22 years old with a 10th grade education. He is a citizen and native of Jamaica, West Indies and was admitted to the United States at New York City on or about 26 September 1986 as a P22. Also, counsel manifested that at the time of plea, defendant was in good physical and mental health, not under the influence of drugs and was entering the plea of his own free will after having sufficient time to discuss his case and plea with his counsel.

The court continued allocution of defendant and allowed defendant to have some time with his counsel to discuss the waiver of his right to appeal and defendant did in fact waive his right to appeal from the plea, conviction and sentence. In addition, the court received notice from the People that defendant was a predicate felon and defendant stated that he discussed the matter with his counsel and at the time of plea also admitted the prior conviction and sentence. Defendant stated that he did not wish to challenge the constitutionality of the prior conviction. The court then adjudged defendant a second felony offender. Further, the arrest for the charges herein caused defendant’s violation of probation (VOP) and defendant stated that he discussed the VOP his counsel and had sufficient time to do so. Defendant then entered a plea of guilty to the VOP for failure to lead a law-abiding life. At that time during the proceedings defendant informed the court that he wanted to discuss the VOP issue with his counsel. The court allowed time to do so. His counsel then reported to the court that the defendant understood. Defendant responded in the affirmative that he was satisfied with the services rendered by his counsel and pleaded guilty to the VOP. The records of the court proceedings did not reflect any discussion pertaining to the defendant’s immigration status or the effect and consequences of the plea agreement on any immigration status.

Upon the notice of motion dated 31 August 2010, defendant moves pro se for an order pursuant to Criminal Procedure Law (CPL) section 440.10(1)(H) to vacate the within conviction and to have his sentence therewith set aside.

Defendant claims ineffective assistance of counsel and that the judgment was obtained in violation of defendant’s constitutional right because defendant’s counsel did not properly advise him of the direct penal consequences of his plea as it related to defendant’s immigration status. Defendant cites the recent United States Supreme Court decision of Jose Padilla v Kentucky, 130 S. Ct 1473 (2010) in support of his position.

The People oppose defendant’s motion and maintain that Padilla is inapplicable to defendant’s situation.

Based on a review of the motion papers, such other papers on file with the Court, and the proceedings had prior thereto, the decision and order of the Court on defendant’s motion is DENIED in its entirety.

The court held the same for the following reasons, to wit:

On the Convictions/Immigration Removal Status:

Defendant is currently undergoing immigration removal deportation proceedings regarding prior felonies and a subsequent charge against defendant is pending.

Defendant’s removal papers cite all four of his convictions in the following reverse order:

First, on 5 November 2009 in Rockland County Court at Brooklyn, NY for the offense of Penal Law (PL) section 220.09 [1], Criminal Possession of Narcotic Drug in the 4 Degree, a class C felony and sentenced to two years.

Second, on 11 December 2001 in Albany County for violating PL section 220.06[5], Criminal Possession of a Controlled Substance in the 5th Degree, a class D felony and PL section 220.16[12], Criminal Possession of a Controlled Substance in the 3rd Degree, a class B felony and sentenced to 5 years, 4 months to 16 years concurrent.

Third, on 23 December 2003, resentenced for violation of PL section 220.06[5], a class D felony to time served.

Fourth, on 4 August 1993, in Kings County (on the within matter which is the basis for defendant’s 440 motion), for violation of PL 220.31 Criminal Sale of a Controlled substance in the 5th Degree, a class D felony and sentenced to 2 to 4 years imprisonment.

Fifth, on 29 January 1990, in Kings County, for offense of PL 110/265.02[1] Attempted Criminal Possession of a Weapon in the 3rd Degree, a class E felony and sentenced to five years probation. Defendant violated probation, thereby becoming a predicate felon and also, on August 4, 1993, was resentenced for this offense and sentenced to 16 months to 4 years.

On the Immigration Removal Law:

As it relates to the charges herein, a person who is not a citizen or national of the United States is subject to removal and deportation from the United States pursuant to the Immigration and Nationality Act under the following sections:

First, 237 (a) (2) (B) (i), as amended, at any time after admission [to the United States], if the person has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances Act, 21 U. S. C. 802), other than a single offense involving possession for one’s own use of 30 grams or less of marijuana;

Second, 237 (a) (2) (A) (iii) of the Act pertains to an aggravated felony as defined in section 101 (a) (43) (B) of the Act, an offense relating to the illicit trafficking in a controlled substance as described in section 102 of the Controlled Substances Act, including a drug trafficking crime as defined in section 924 (c) of Title 18 of the United States Code; and,

Third, 237 (a) (2) (C) pertains to conviction for any law of purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying or of attempting or conspiring to purchase, sell, offer for sale, exchange, use, own, possess, or carry in violation of any law, any weapon part, or accessory which is a firearm or destructive device, as defined in section 921 (a) of Title 18, United States Code.

Fourth, according to the current law, defendant is subject to removal and deportation at any time subsequent to his convictions for possession of drugs, sale of drugs and attempted possession of a weapon (in defendant’s case it was a pistol).

The defendant in this case has not met either prong of Strickland. He has not sufficiently alleged that his counsel was constitutionally deficient and defendant has not sufficiently alleged any prejudice.

Nowhere in defendant’s motion papers does he state that his counsel failed to advise him of the immigration consequences of his plea even if defendant’s claims were to withstand scrutiny under the Strickland test. Defendant’s arguments fall on the possibility that his counsel may have misadvised him because he “was not adequately informed of the true consequences of his decision to enter a guilty plea.” Defendant also does not show that if he had been informed by counsel of what he calls the “true consequences” that he would have refused the plea and demanded to go to trial. Unlike in Padilla, (where Mr. Padilla claimed that his counsel failed to advise him of the deportation consequences of his plea, Mr. Padilla also stated that his counsel “told him that he did not have to worry about immigration status since he had been in the country so long”) here, the court does not know what counsel’s advice was to this defendant because the defendant does not state such in his moving papers.

However, the People have provided the court with an affidavit of defendant’s attorney stating what his standard practice is and was at the time he represented the defendant in this matter. In light of the fact that the defendant has made no sufficient allegation, the court is constrained to accept the sworn affidavit of defendant’s former counsel and finds that counsel’s representation meets the objective standard of reasonableness as he details the pattern and practice of his representation over the past seventeen years.

“The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.” This was the ruling in the case of Strickland.

The absence of the record of conversations in the plea minutes regarding the immigration consequences of the plea between defendant and counsel or that of the court must be noted that that factor is not dispositive as a number of breaks occurred where defendant was allowed the in court opportunity to speak to his attorney, albeit off the record, in accordance with attorney client privilege.

The court finds there is no basis to hold a hearing in this matter pursuant to CPL section 440.30 (4) that upon considering the merits of the motion, the court may deny it without conducting a hearing if (b) the motion is based upon the existence or occurrence of facts and the moving papers do not contain sworn allegations substantiating or tending to substantiate all the essential facts, as required by subdivision one and (d) an allegation of fact essential to support the motion is made solely by the defendant and is unsupported by any other affidavit or evidence and under these and all the other circumstances attending the case, there is no reasonable possibility that such allegation is true.

Defendant has failed to meet his burden.

The court agrees with the People that the Padilla decision is inapplicable to the instant matter. Further, even if Padilla were applicable, there is no basis for its application retroactively. Consequently, defendant’s motion herein must be denied in its entirety. Accordingly, based on the foregoing, the defendant’s CPL 440.10 (1) (h) motion to set aside his conviction is DENIED.

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