People v. Castro , 20 N.Y.S.3d 208 ( 2015 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: November 12, 2015 107126
________________________________
THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
ROBERTO CASTRO,
Appellant.
________________________________
Calendar Date: September 16, 2015
Before: Lahtinen, J.P., Egan Jr., Devine and Clark, JJ.
__________
Frederick P. Korkosz, Albany, for appellant.
P. David Soares, District Attorney, Albany (Vincent Stark
of counsel), for respondent.
__________
Lahtinen, J.P.
Appeal, by permission, from an order of the County Court of
Albany County (Herrick, J.), entered February 2, 2015, which
denied defendant's motion pursuant to CPL 440.10 to vacate a
judgment convicting him of the crime of grand larceny in the
third degree, without a hearing.
Defendant, a noncitizen of the United States with permanent
residence status, was charged with grand larceny in the second
degree for his alleged role in a scheme in which a significant
amount of money was pilfered from the supplemental nutrition
assistance program between 2008 and 2011. He pleaded guilty in
2012 to the reduced charge of grand larceny in the third degree
and received a negotiated sentence of 1 to 3 years in prison. In
2014, he made a CPL article 440 motion to vacate the judgment of
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conviction contending that his plea was involuntary and that he
had not received the effective assistance of counsel because he
had not been adequately warned of potential deportation
consequences and his counsel had not informed him of a possible
suppression motion regarding evidence seized by law enforcement.
County Court denied the motion without a hearing, and defendant,
by permission, appeals.
We affirm. At the time of defendant's plea, the law had
been "established that the failure of counsel to advise a
defendant of the possibility of deportation as a result of his or
her plea constitutes the ineffective assistance of counsel"
(People v Diallo, 88 AD3d 1152, 1153 [2011], lv denied 18 NY3d
993 [2012]; see Padilla v Kentucky, 559 U.S. 356 [2010]). During
the plea proceeding, he was advised, among other things, that his
conviction "may result in your deportation" and, when he inquired
about a specific percentage of that happening, he was told a
percentage could not be given but that it was "a very real
possibility." Defendant acknowledged that the topic of
deportation had been discussed several times with his attorney
and, later in the proceeding, County Court again warned that the
plea he was about to give could be used in future proceedings,
"[i]ncluding proceedings relative to your [i]mmigration status."
Defendant did not deny in his motion that such warnings were
given, but contends that he should have been told that
deportation was "a certainty." There are no particular words or
phrases that must be used to adequately apprise a defendant of
potential deportation as a result of pleading guilty. Here, his
attorney, as well as County Court, clearly communicated on the
record at the plea proceeding the potential deportation
consequences resulting from defendant's plea. This was
sufficient warning and, accordingly, County Court did not err in
denying the motion without a hearing (see People v Achouatte, 91
AD3d 1028, 1029 [2012], lv denied 18 NY3d 954 [2012], cert denied
___ US ___, 133 S. Ct. 216 [2012]).
Defendant further asserts that his attorney failed to
advise him of a possible suppression motion. The record of the
plea colloquy, however, reflects that defendant acknowledged that
he had discussed with his attorney possible legal or
constitutional defenses, he had no further questions, he was
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satisfied with his attorney's legal representation and he
understood that as part of the plea he was giving up various
rights, including to file motions or have pretrial hearings.
Given such on-the-record statements, this aspect of defendant's
motion was also properly denied without a hearing (see People v
Reynoso, 88 AD3d 1162, 1163 [2011]). The remaining argument has
been considered and is without merit.
Egan Jr., Devine and Clark, JJ., concur.
ORDERED that the order is affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court