Defendant, Salomon Felipe, represented by new counsel, moves to vacate his 1994 judgment of conviction pursuant to CPL 440.10 (1) (h) on the grounds of ineffective assistance of counsel. Defendant contends that his former counsel failed to advise him about any immigration consequences flowing from his plea to the above-captioned superior court information ("SCI"). In the alternative defendant argues that counsel incorrectly advised him about the "mandatory" deportation consequences of such plea involving a controlled substance. Defendant also moves pursuant to CPL 440.10 (1) (b) on the grounds that the plea was rendered involuntary and the judgment illegal because the sentencing Judge preemptively precluded him from making a motion to withdraw his plea based upon deportation consequences, first raised on the record at the sentencing proceeding.

Since the sentencing Justice is not presently sitting in Kings County, this motion was referred to me as the Miscellaneous Justice. I ordered and conducted an evidentiary hearing on these issues, which was held on January 30, 2007. Defendant elected not to testify and called former counsel, a longtime member of the Legal Aid Society ("LAS"), as his sole witness. The prosecution called no witnesses.

On February 8, 1994 defendant and his codefendant nephew (separately represented) were arraigned in Criminal Court on a felony complaint charging criminal possession of a controlled substance in the third degree (with intent to sell, Penal Law §220.16-1) and in the fourth degree (in excess of 1/8 of an ounce, Penal Law §220.09-1) relating to crack cocaine recovered in defendant's car. Both defendants were found in actual possession of empty glassine envelopes and codefendant also had a [*2]quantity of crack cocaine on his person.

On February 10, 1994, while still represented by former counsel, defendant pleaded guilty to the SCI charging a single count of attempted criminal possession of a controlled substance in the third degree (intent to sell, Penal Law §110.00/220.16-1). The District Attorney's Office conditioned the offer by a requirement that both defendants plead guilty. See People v Fiumefreddo, 82 NY2d 536 (1993). There was no record made regarding deportation at the plea proceeding. Defendant was sentenced on March 30, 1994 by a different Justice who was then presiding in the Part to one day in jail (already served) and five years probation, as originally promised and agreed. Prior to imposing sentence, upon reading a notation in the presentence report that defendant was in this country illegally, the sentencing court stated: "and as a result of the conviction, should deportation proceedings begin, I'm not going to accept that as a reason to allow him to withdraw his plea." After a pause of unknown duration, former counsel responded on the record: "I have explained all his rights about deportation. He indicates he's ready to proceed."

In order to complete this narrative and set forth the contentions

defendant initially raised in his motion, I will now refer to defendant's affidavit in support of his motion.^[FN1] Defendant avers that he was born in Panama and has resided (albeit illegally) in the United States since 1991. In 2003, nearly ten years after his plea and sentence, defendant's oldest son sponsored him for permanent residency. This sponsorship triggered an investigation and enforcement proceedings by the Bureau of Citizenship and Immigration Service, U. S. Department of Homeland Security, ("DHS", formerly the Immigration and Naturalization Service). DHS informed defendant that his several criminal cases between 1994 and 2002, including the instant case, made him ineligible for legal residency and he would be mandatorily deported.^[FN2] Defendant initially claimed that former [*3]counsel never inquired about his immigration status at any time nor did he discuss any deportation consequences relating to his prosecution for this controlled substance offense. He further denied that former counsel explained his deportation rights to him even after the issue was raised by the sentencing court.^[FN3]

Defendant's affidavit also claimed innocence, and that he took the plea only to help his guilty nephew because of the "no splitting of defendants' pleas" posture taken by the prosecutor. This claim of actual innocence was contradicted by the plea minutes and the probation report, and in any event was abandoned by counsel during the course of these current proceedings. Defendant further claimed in his moving affidavit that he would not havepleaded guilty and would have gone to trial if he knew his plea would result in mandatory deportation. This unsupported and problematic assertion, however, was not subject to cross-examination and cannot be given evidentiary weight (see n 1 supra) to establish the prejudice prong of the federal test for ineffective assistance of counsel to be discussed below.

EVIDENTIARY HEARING

Based on the hearing record developed in this case I make certain findings of fact which follow. I believe that former counsel was overall a truthful witness, but not surprisingly had a very limited recollection of this 1994 case, supplemented somewhat by notations on the front page (which he photocopied) of his LAS file, the rest of which is now missing. Former counsel's knowledge of immigration law and the consequences flowing from criminal convictions is presently nominal and was likely even less in 1994. His recollection seemed to increase marginally over the course of the [*4]hearing, but his testimony was still confusing .

Former counsel wrote "D alien" and "D advised of deportablility" on his file, probably at defendant's arraignment. He understood the term "alien" to mean any non-citizen, and made no distinction between those in the United States with lawful status and those "out of status" - a term of art with which he was not familiar, but which clearly fit his client. While not free from doubt I tend to believe that former counsel probably touched base with a LAS attorney specializing in immigration matters about defendant's case at some point relevant to the plea and sentence.^[FN4] Significantly, whether or not he did consult a specialist, former counsel was unable to recount what advice or information was provided to him or more importantly what he told defendant based upon this consultation.

Former counsel continually used the term "deportability" to mean possible deportation and he did not consistently or clearly distinguish between

possible and mandatory ^[FN5] deportation. Nor did former counsel appear to understand the deportation consequences relating to controlled substance convictions for illegal aliens. See, INA 237(a)(2)(B)(i), 8 U.S.C. §1227(a)(2)(B)(i). I find that he told defendant at the Criminal Court arraignment that he faced the possibility of being deported if convicted of [*5]criminal possession of a controlled substance in the third degree, but not that he told him he was mandatory for deportation.^[FN6]

At sentencing, the Judge ruled that "if probation is correct that [defendant] is here illegally, and as a result of which they notify Immigration and Naturalization of what the status of this defendant is, and as a result of the conviction, should deportation proceedings begin, I'm not going to accept that as a reason to allow him to withdraw his plea. If he is here illegally and he gets deported, he gets deported. I will not accept that, also, as a reason to terminate his probation." After what I infer was a short pause, former counsel then stated on the record: "I have explained all his rights about deportation. He indicates he's ready to proceed." I find that, at a minimum, counsel then said to his client in words or substance, off the record: "You heard the Judge about deportation, do you still want to go through with this sentence now."

I conclude from this record that former counsel's failure to object to the Court's statement or make a motion to withdraw the plea was based upon defendant's willingness to go forward. Although such acquiescence could have been influenced to some degree by incomplete and therefore misleading information, it is impossible on this record for me to conclude that defendant has established by a preponderance of the evidence that more complete immigration advice would have caused him to move to withdraw his plea and go to trial. CPL 440.30(6).^[FN7]

DISCUSSION

The current state of the law in New York is that mere failure to advise a defendant of the possibility of deportation does not constitute ineffective assistance of counsel since it is a collateral consequence of a conviction. See, People v McDonald, 1 NY3d 109, 114 (2003); People v Ford, 86 NY2d 397 (1995); see also CPL 220. 50 (7). However, affirmative misstatements by counsel may under certain circumstances constitute [*6]ineffective assistance of counsel. See People v McDonald, supra at 114-115. The McDonald Court, however, unlike the Court in Ford, supra, limited its analysis to defendant's federal constitutional claim and not the state claim.^[FN8] Felipe raises his claim on both federal and state constitutional grounds.

"Under the Federal Constitution, the long-standing test for determining the validity of a guilty plea is whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant' (Hill v Lockhart, 474 US 52, 56 [1985] [internal quotation marks and citations omitted])." People v McDonald, 1 NY3d at 113. A defendant who seeks to challenge on federal grounds the voluntary and intelligent character of a guilty plea on the basis of ineffective assistance of counsel is required to establish that defense counsel's advice fell outside the standard set forth in Strickland v Washington, 466 US 668 (1984). The Strickland standard is a two-prong test whereby a defendant must demonstrate that counsel's performance was deficient and this deficiency prejudiced the defendant. As the McDonald Court noted: "The first prong of the Strickland test is essentially a restatement of attorney competence, which requires a showing that counsel's representation fell below an objective standard of reasonableness (Hill, 474 US at 58)." People v McDonald, 1 NY3d at 113. The second prong, commonly referred to as the "prejudice prong", "focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process." Hill, 374 US at 59. In order to satisfy this prejudice prong "a defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id.

In People v McDonald, 1 NY3d at 112, trial counsel admitted in an affirmation in support of the defendant's motion to vacate his judgment of

conviction that he had incorrectly advised the defendant that his guilty plea

would not result in deportation, conceding that defendant actually risked [*7]mandatory deportation upon conviction for any of the felonies charged. The Court of Appeals held that these allegations met the first prong of the Strickland test, but found, without the need for a hearing, that defendant failed to demonstrate prejudice, the second prong, since the supporting affirmation made by defense counsel did not factually allege that, but for counsel's error, the

defendant would not have pleaded guilty.^[FN9]

Even though I have concluded that former counsel provided incomplete advice regarding his client's "deportability" (instead of advising him point blank that he faced mandatory deportation), it does not necessarily follow that this failure amounts to incompetence under the federal test in accordance with McDonald. Since this advice was not starkly erroneous, as it was in McDonald, and considering the uncertainties associated with mandatory deportation cases (see n 5, supra) I view it as questionable whether it satisfied the incompetence prong. In any event, on this record defendant cannot prevail under the prejudice prong of McDonald because he failed to establish at the 440 evidentiary hearing a reasonable probability that but for former counsel's incomplete advice he would not have pleaded guilty and would have insisted on going to trial. Therefore, Felipe's federal claim must fail.

Defendant also raises a claim of involuntariness and ineffective assistance of counsel as a matter of state constitutional law.Plainly, based on the record made at the sentencing proceeding in Felipe, the issue of involuntariness was not preserved. Nor did the enlarged 440 record made by the defense herein establish that claim. Therefore, that claim must also fail, leaving only the ineffective of assistance of counsel state claim.

The Court of Appeals has consistently declined to adopt the Strickland test, noting that "effective assistance" is not "amenable to precise demarcation applicable in all cases" and that a flexible standard must be used to analyze ineffectiveness claims. People v Benevento , 91 NY2d 708, [*8]712 ( 1998 ). "As we have held, [s]o long as the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation, the constitutional requirement will have been met' (People v Baldi , 54 NY2d at 147). The core of the inquiry is whether defendant received meaningful representation.'" People v Benevento, 91 NY2d at 712. The Court has more recently explained: "we note that [o]ur ineffective assistance cases have departed from the second ( but for') prong of Strickland v Washington, 466 US 668 (1984) and have, instead, adopt[ed] a rule somewhat more favorable to defendants' (People v Turner , 5 NY3d 476 [2005]) because its prejudice component 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 NY3d 143 [2005] [quotation marks and citation omitted])." People v Ozuna , 7 NY3d 913, 915 (2006).^[FN10]

In the context of a guilty plea, a defendant has been afforded

meaningful representation, which does not mean "perfect representation," "when he or she receives an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel" (citations omitted). People v Ford, 86 NY2d at 404. The representation as a whole and the fairness of the process must be measured to determine if it was meaningful for defendant. Granting that former counsel's deportation advice was at best incomplete, was this single failure enough to negate effective representation in the plea bargaining process as a whole under New York [*9]law?^[FN11]

Here, it has been shown that defendant, who had to know of his illegal immigration status in general, was apprised of the deportability issue. Facing a B non-violent felony offense involving a controlled substance, and having been released on bail, apparently due in part to the bail argument of counsel to the criminal court judge, defendant was offered an admittedly standard, but not unattractive, offer of a plea down to an attempt. This plea took the crime out of the mandatory jail category (a range from 1-3 years to 8 1/3 -25 years), and permitted a non-jail sentence, which he was in fact promised and given.

The defense now argues, not that defendant could, would and should have gone to trial, but that there would have been no harm in seeking an adjournment to try to negotiate a better disposition. This may be true, but he fails to offer any evidence regarding what better disposition could or should have been sought and achieved in the context of this case. Even if an unlikely misdemeanor offer would have been extended later, which there is no basis in this record to expect, it would in all likelihood have remained a controlled substance conviction, still leaving him in a similar deportation category.

In the final analysis, considering what was accomplished by former counsel and the spareness of this 440 record, I have concluded that defendant has not established his entitlement to the relief he seeks on this motion under CPL

Article 440 or the New York or United States Constitutions.^[FN12] Accordingly, defendant's motion is hereby DENIED.

IT IS SO ORDERED.

ENTER,

Joseph Kevin McKay