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People v. Moreno

Defendant Cannot Show Attorney's Alleged Immigration Misadvice Prejudiced Him

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DECISION & ORDER

*1  Appeal, by permission, from an order of the Criminal Court of the City of New York, Richmond County (Alan J. Meyer, J.), dated November 14, 2016. The order denied, without a hearing, defendant’s motion, pursuant to CPL 440.10, to vacate a judgment convicting him, upon his plea of guilty, of assault in the third degree.PER CURIAMORDERED that the order is affirmed.Defendant was charged in a felony complaint with strangulation in the second degree (Penal Law §121.12), criminal obstruction of breathing or blood circulation (Penal Law §121.11 [a]), assault in the third degree (Penal Law §120.00 [1]), and harassment in the second degree (Penal Law §240.26 [1]). On January 28, 2014, as part of a plea bargain, an additional count of assault in the third degree (Penal Law §120.00 [2]) was added to the accusatory instrument and, after notations were made on the face of the instrument, the other counts were dismissed. Defendant then pleaded guilty to assault in the third degree (Penal Law §120.00 [2]) and was sentenced, as agreed upon, to six months’ incarceration. During the plea allocution, the court asked defendant, who was represented by counsel, if he understood that he “will be deported” based upon the plea, and defendant responded in the affirmative. On June 9, 2016, defendant moved, pursuant to CPL 440.10 (1) (h), to vacate the judgment of conviction on the ground that he had been denied the effective assistance of counsel. In support of the motion, defendant, who is an undocumented immigrant, submitted an affidavit in which he stated that his former counsel had misadvised him, before he had entered into the plea, by telling him that he “could have problems with immigration” as a consequence of taking the plea and reassuring him that he should not worry, thereby downplaying the likelihood of an immigration problem. Defendant further alleged that the conviction foreclosed his eligibility under the Deferred Action for Childhood Arrivals (DACA) program, which was his only avenue to legally remain in the

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