Appeals decided on: February 5, 2021
By: Weston, J.P., Elliot, Toussaint, JJ. Feldman and Feldman (Arza Feldman and Steven A. Feldman of counsel), for appellant. Queens County District Attorney (John M. Castellano and Johnnette Traill of counsel), for respondent. 2018-1557 Q CR. PEOPLE v. WILSON, CHEVELAIR — Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Gia L. Morris, J.), rendered June 11, 2018. The judgment convicted defendant, upon his plea of guilty, of criminal mischief in the fourth degree, and imposed sentence. ORDERED that the judgment of conviction is affirmed. Defendant was charged with criminal mischief in the third degree (Penal Law §145.05) and, upon reduction of the felony charge (see CPL 180.50), he pleaded guilty to criminal mischief in the fourth degree (Penal Law §145.00) and was sentenced to a conditional discharge. On appeal, defendant contends that, in failing to advise him about the potential immigration consequences of his plea, including deportation, defense counsel failed to meet her obligations under Padilla v. Kentucky (559 US 356 [2010]). Defendant further argues that, when he responded “not really” during his plea allocution to the court’s question of whether he had discussed the immigration consequences of pleading guilty with his attorney, the court should have suspended the plea proceeding and allowed defendant to confer with his attorney. Where a defendant’s complaint about counsel is predicated on a failure to advise of deportation consequences, which failure does not appear on the face of the record, the defendant must raise the claim via a CPL 440.10 motion (see People v. Peque, 22 NY3d 168, 202 [2013]; People v. Haffiz, 19 NY3d 883, 885 [2012]; People v. McLean, 15 NY3d 117, 121 [2010]; People v. Love, 57 NY2d 998, 1000 [1982]). Here, as defendant failed to make a CPL 440.10 motion, he failed to meet his burden of demonstrating, based upon the existing record, that he had received the ineffective assistance of counsel (see People v. Moreno, 58 Misc 3d 160[A], 2018 NY Slip Op 50289[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). Rather, the record demonstrates that, during the plea allocution, the prosecutor asked defense counsel whether defendant was a United States citizen and, in the presence of defendant and the court, defense counsel responded in the affirmative. Consequently, it can be inferred therefrom that defense counsel discussed with defendant the status of his citizenship, discovered that defendant was a citizen of the United States, and thereby determined that it was not necessary to advise defendant about the deportation consequences of pleading guilty. Indeed, defendant acknowledged to the court that he had discussed his citizenship with his attorney. Therefore, since the record reflects that counsel had ascertained from defendant that he was a United States citizen, counsel had no further duty under Padilla (559 US at 369 ["a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences"]). Consequently, based upon defense counsel’s representation to the court that defendant is a United States citizen, not only did defense counsel thereby have no duty to discuss immigration consequences with defendant, but, even if there was such a duty, defendant cannot establish that he was prejudiced by his attorney’s alleged omission. To the extent that defendant is making a Peque claim, regardless of whether it falls within one of the narrow exceptions to the preservation rule (see People v. Delorbe, 35 NY3d 112 [2020]; People v. Williams, 27 NY3d 212, 214 [2016]; Peque, 22 NY3d at 183; People v. Louree, 8 NY3d 541, 546 [2007]; People v. Lopez, 71 NY2d 662, 666 [1988]), it is without merit. Here, by informing defendant during the plea allocution that, if he was not a United States citizen, he could be deported, denied a green card, or denied reentry into the United States as a result of taking the plea, the record demonstrates that the Criminal Court satisfied whatever duty it may have had under Peque (22 NY3d at 197; see CPL 220.50 [7]). Accordingly, the judgment of conviction is affirmed. WESTON, J.P., ELLIOT and TOUSSAINT, JJ., concur. February 5, 2021
