Defendant stands convicted of Attempted Petit Larceny(PL § 110/155.25). On November 22, 2006, defendant filed a motion pursuant to CPL § 440.10, to vacate the conviction and sentence on the ground of ineffective assistance of counsel. The People oppose the motion, and seek summary denial on both procedural and substantive grounds. On April 3, 2007, the Court ordered an evidentiary hearing, which was conducted on April 20, 2007. The parties subsequently submitted various briefs in support of their respective positions. For the reasons that follows, defendant's motion is denied.

FACTS

Defendant is a twenty-year old male, who claims to have been born in Ivano-Frankovsk, Uukraine on February 11, 1987. On July 16, 2000, he was admitted to the United States as Lawful Permanent Resident Alien. Since then he has resided in the State of New York with his stepfather, mother and brother. He was ordered deported by the Department of Homeland Security, Immigration & Customs Enforcement and is currently free pending resolution of his appeal before the Second Circuit Court of Appeals.

I.The Information:

Police Officer Joy Spruill, shield number 20904, says that on or about March 21, 2005 at approximately 2:50 PM at 8923 BAY PARKWAY BROOKLY [sic], County of Kings, State of New York, the defendant committed the offenses of:

PL 155:25PETIT LARCENY

PL 165.40CRIMINAL POSSESSION OF STOLEN PROPERTY IN THE FIFTH DEGREE

The source of deponent's information and the ground for deponent's belief are as follows:

The deponent is informed by the sworn statement of Jackie Veloce, Best buy [sic] Manager of Best Buy that, at the above time and place, the informant observed the defendant attempt to take assorted store merchandise and attempt to leave the store in possession of the above-mentioned property without paying for it.

The deponent is informed by the sworn statement of Jackie Veloce that informant, as a New York City Police Officer, is the custodian the above-described property and defendant did not have permission or authority to take, use, possess or attempt to take, use or possess that property.

The accompanying Supporting Deposition, dated 3/21/05 and signed by Jackie Veloce, as "Best Buy Manager", confirms that defendant was observed attempting to leave Best Buy without paying for a DVD movie valued at $17.99.

II.Plea Proceeding:

On May 25, 2005, defendant appeared before this Court and entered a guilty plea to the

charge of Attempted Petit Larceny. Richard LaFontaine, Esquire, of the Brooklyn Defender Services, represented defendant when his case was initially called; the matter was second called to resolve the issue of whether defendant had three cases pending before the court (P: 2-3)^[FN1]. When the matter was recalled, it was verified that one of the cases had no public record; another was dismissed with sealing stayed for approximately one month; and the third (which is the subject of this motion) was on for "possible disposition" (P:3-4).

At this call, Steven Dean, Esquire, also of the Brooklyn Defender Services, represented defendant. The People's recommendation was initially an "A" misdemeanor and thirty (30) days jail. Thereafter, the parties held an off-the-record bench conference following which the People made an offer of a "B" misdemeanor (P:4). Defense counsel Dean then confirmed that defendant had authorized him to enter a plea of guilty to Attempted Petit Larceny, "with the understanding that [defendant] will receive a sentence of thirty (30) days to run concurrently with the felony sentence of nine (9) months that he is doing right now and I discussed everything with him..."(P: 4-5).

During the allocution, defendant acknowledged that he had had sufficient time to speak with his attorney about the case; that no other promises had been made to him beyond that of thirty (30) days jail concurrent with the sentence imposed on his felony case; that no one had forced him to plead guilty; and that he was giving up various constitutional rights, including his right to a trial. Finally, defendant confirmed that his "attorney [h]ad explained to [him] that if there are any ramifications to [his] immigration status" because of this plea, he would not be permitted to withdraw this plea (P: 5-6) (emphasis added). He then admitted that he "attempted to take various items from Best Buy without paying for them and [that he] had no permission or authority to do that" (P: 6).

The Court then sentenced defendant to the promised term and entered the civil judgment as to the mandatory surcharge (P: 7).

III.Hearing:

Defendant presented four witness, including himself: Steven Dean, Esq. ("Dean") and Richard LaFontaine, Esq. ("LaFontaine") of the Brooklyn Defender Services, and his mother Nina Bell ("Bell"). This Court finds that the testimony of LaFontaine and Dean to be credible and declines to do so with respect to the majority of defendant's testimony and that of his [*2]mother. After waiving his attorney/client privileges with respect to Dean and LaFontaine, defendant confirmed that he was ordered deported on May, 2006, had lost his first appeal to the Board of Immigration Appeals and had a pending appeal to the Second Circuit Court of Appeals (H: 6-8).

The instant matter was assigned to LaFontaine during the pendency of defendant's felony grand larceny case. LaFontaine recalled that defendant was concerned that he could be deported if convicted of the felony matter. He had multiple discussions with defendant in December 2004, February 2005 and March 2005 that "the choice that he had to make - - that if he pled guilty he was facing - - it would certainly effect (sic) his immigration status, and he could be deported based on the conviction" (H: 47-48). Alternatively, if "he went to trial there was the possibility of receiving a much longer sentence after trial than the offer that was on the table so to speak" (id.).

After attending various CLE lectures, LaFontaine firmly believed that "pretty much anything that happens in criminal court is going to make you deportable" and that if one is "convicted of anything and a lot of times even if you're not convicted, they can deport you" (H: 51; 59). LaFontaine's normal practice, upon ascertaining the immigration status of a client, is generally to give a "pessimistic view of possible consequences to [his] clients. When they say how likely is it, I tell them these days if you even sneeze wrong you get deported" (H: 56). He would suggest that they speak with an immigration attorney and offer to assist the client with finding one (id; 59 - 60).

Indeed, he did confer with a colleague who herself had been born in Moscow about defendant's case. "All of those things led [him] to tell [defendant] on the felony case that if [he took] the plea [he] could be deported based on this plea. If [defendant] want[ed] more information [he would] have to talk to an immigration lawyer about that" (H:54).

LaFontaine attempted to obtain youthful offender status for defendant because he believed that it would have "far less immigration implications for his deportability" (H: 48). When those efforts failed, he advised defendant in February 2005 that he "had to make a choice between the lesser of two evils" and explained that "one of the evils of pleading guilty would be it might make him deportable." Notations on the felony file reflects that defendant was so advised in February, as well as having been "advised of his INS implications" in March 2005 when he took the plea on the felony matter (H: 48 - 49; 60).

Defendant maintained, however, that during two of the six meetings that they had during the pendency of the case, LaFontaine told him that there would be "no problem" with respect to his immigration status if he pleaded guilty on the felony case (H: 12; 15-16). His mother's testimony supported him in that assertion (H: 64-69).

Specifically, she recalled that when the felony matter was at the point where defendant had to make a decision about whether to accept the plea offer of four months jail with probation or face a minium of four years jail if he proceeded to trial, she specifically asked LaFontaine if there would be any ramifications to defendant's immigration status. According to her, "he said he thinks there wouldn't be any problems" if defendant pleaded guilty on the felony matter (H: 64-69).

Ms. Bell was not present during any conversations where LaFontaine told her son that deportation was a possibility, although she acknowledged that she would not have been present during any possible conversations LaFontaine may have had with him while he was in jail. LaFontaine never told her that he had spoken with defendant about immigration issues and he [*3]would usually tell her when he had spoken to defendant (H: 71-72).

LaFontaine was not sure that he "ever spoke to [defendant] about the petit larceny case". It was "unclear" if he and defendant "ever met face to face from the time he was arrested until after he took the plea" (H: 49-50). Defendant confirmed that he had no conversation with LaFontaine about the misdemeanor case (H:12). Furthermore, LaFontaine had "no recollection" of having any conversation with Dean about the immigration consequences of defendant pleading guilty to the petit larceny case and thought that it was "unlikely" that [he] had had [such] a conversation" (H:50).

LaFontaine did not "specifically remember" the day that defendant took the plea on the instant matter (H:41). From his review of the file, it appears that defendant was not produced by the morning when LaFontaine appeared, and he asked a colleague, apparently Dean, to cover the case for him because he was scheduled to begin a trial that afternoon (H: 42). He had no recollection of specifically telling Dean that defendant had already been sentenced on a grand larceny matter, but he "probably did tell [him] that [defendant] was in on a felony matter, that he was already sentenced on the felony matter, and that this case - - we were waiting from him to be produced on the misdemeanor on an Order to Produce" (H:42). LaFontaine did not believe that the thirty (30) day concurrent offer had been made at the time he was there that morning.

Dean had no independent recollection of the circumstances of his conversation with defendant about any immigration issues (H: 30). Nor did he have an independent recollection regarding his conversation with LaFontaine about defendant's immigration status (H: 31). He and LaFontaine "infrequently st[ood] in" for each other (H: 31 - 32). Dean knew, however, that a "larcenous offense ha[d] immigration consequences" (H:33). If a defendant was a non-citizen and was pleading guilty to a larceny crime, Dean "probably would say something that it would be subject to immigration consequences - - possible deportation if [the defendant] t[ook] a plea" (H: 35 - 36).

Defendant insisted, however, that during his conversation with Dean prior to the acceptance of the plea, he asked "about immigration consequences" and Dean told him that "it shouldn't happen to my green card. I shouldn't have no problems with citizenship"(H: 11-12; 18; 23-24). Dean never told him, however, "that by pleading guilty to the Petit Larceny [he] would not be deported" (H: 18).

In response to the ADA's questions regarding whether defendant remembered standing before this Court, being asked the following questions and giving the following responses: "Sir, your attorney has explained to you that if there are any ramifications to your immigration status because you took the plea, we will not permit you to withdraw the plea. Do you understand, and that your answer was, yes"? Defendant responded, "yes" (H:18). When asked why did he give that answer, defendant testified that, "because when I asked him about immigration consequences, the way he told me he give me the answer there should be no problem. I thought everything was going to be all right" (H:20-23).

Finally, when asked by the ADA whether defendant thought he had a "pretty good case with regard to the petit larceny case", and that if he had the Best Buy security tapes and a statement from his co-defendant that he could have easily won the petit larceny case, defendant responded, "yes". Defendant also testified that he still thought that he was innocent of the petit larceny case, and responded, "yes" to the question whether, in hindsight, he would have liked to have gone to trial because he thought he was innocent (H:19).

On re-direct by defense counsel, when asked, "if the evidence on this petit larceny case [*4]was strong enough to beat it if you had got to trial, why didn't you just go to trial on that case?" defendant testified that, "at the time, and when I was incarcerated for the grand larceny case I was distressed, and I didn't want to go back and forth. I wanted to get over it, and I just pled guilty. That is it. If I knew about immigration consequences if I pled guilty and I get deported, I would never plead guilty because I didn't do it" (H: 23).

On re-cross by the ADA, when asked, "...based on Mr. Dean's representation to you that it shouldn't be a problem, were you aware that deportation was a possibility?" defendant responded, "not really". When asked, "what gave you the impression that by pleading guilty there is no chance that you could be deported?" defendant testified, "the way he said it shouldn't

be no problem. So, at that time for me that was a good answer, like I wouldn't have no problem with immigration" (H: 21).

Defendant argues that he was deprived of his state and federal rights to the effective assistance of counsel when Dean either (1) failed to tell him that he would be subject to mandatory deportation if he took the plea; or (2) affirmatively misadvised him that "there would be no problem with [defendant's] citizenship". He further contends that his rights were likewise violated when LaFontaine either (1) neglected to inform Dean about any deportation consequences in connection with pleading guilty; or (2) did not specifically advise defendant of such consequences himself.

The People counter that defendant has not shown any evidence that prior counsels' representation fell below an objective standard of reasonableness, nor how such alleged misrepresentations prejudiced him. They further argue that defendant pled guilty with a full understanding of his options.

Preliminarily, this Court rejects the People's contention that defendant's motion is procedurally barred because the plea minutes demonstrate that he was advised of the consequences of his plea and thus could have raised his current claims on appeal. Given that defendant urges that affirmative misrepresentations were made by counsel regarding his immigration status, his motion is proper, at the very least, as to those arguments (see generally, People v. McKenzie, 4 AD3d 437, [2nd Dept. 2004]).

"Deportation is a collateral consequence of conviction because it is a result peculiar to the individual's personal circumstances and one not within the control of the court system" (People v. Ford, 86 NY2d 397, 403 [1995]). Thus, a trial court is not required to advise a defendant of such consequences. Nor does counsel's failure to advise a defendant of the possibility of deportation "constitute ineffective assistance of counsel" (id. at 404).

"The right to effective assistance of counsel is guaranteed by the Federal and State Constitutions (US Const 6th Amend; NY Const, art I, § 6). The standard for measuring the performance of counsel under the New York Constitution has been stated as follows:

"So 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 137, 147 [emphasis added]).

The phrase meaningful representation' does not mean perfect representation' (People v Modica, 64 NY2d 828, 829). In the context of a guilty plea, a defendant has been afforded meaningful representation when he or she receives an advantageous plea and nothing in the [*5]record casts doubts on the apparent effectiveness of counsel [People v Boodhoo, 191 AD2d 448, 449, supra : People v Mayes, 133 AD2d 905, 906]" (see, Ford, supra at 405).

With respect to the federal constitutional claim, "the determination of the defendant's motion is governed by the two-part federal constitutional test for claims of ineffective assistance of counsel set forth in Strickland v Washington (466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 [1984]; see People v McDonald, 1 NY3d 109, 802 NE2d 131, 769 NYS2d 781 [2003]). The first prong of Strickland requires a showing that counsel's representation fell below an objective standard of reasonableness (see Strickland v. Washington, supra 466 U.S. at 687; Hill v Lockhart, 474 U.S., 58, 88 L. Ed. 2d 203, 106 S. Ct. 366 [1985]; People v McDonald, supra at 113-114). The second prong, also known as the prejudice prong, focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process' (Hill v. Lockhart, supra at 59; see People v McDonald, supra at 114). To satisfy this second 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' (Hill v Lockhart, supra at 59; see People v McDonald, supra at 114)" (see, People v. McKenzie, 4 AD3d 437, [2nd Dept. 2004]).

It is now well-settled that where an attorney affirmatively misinforms a defendant about the immigration consequences of his plea, such "affirmative misrepresentation falls below an objective standard of reasonableness" (People v. McDonald, 1 NY3d 109, 115 [2003]).

As to defendant's contention that he was deprived of the effective assistance of counsel because both Dean and LaFontaine failed to tell him that he would be automatically deported by virtue of his plea, this Court rejects his claim.

While the plea minutes demonstrate that, contrary to LaFontaine's belief, defendant was produced in court during the initial call of the case, the record is clear that defendant and LaFontaine never spoke about any ramifications to his immigration status as it pertained to the instant petit larceny matter. Indeed, defendant confirmed as much. Accordingly, since there is no requirement that defense counsel must advise a defendant of the possibility of deportation prior to the entry of a plea, LaFontaine's failure to do so did not deprive defendant of the effective assistance of counsel (see, People v. Ford, supra ). Furthermore, if there was no obligation to inform defendant directly, it logically follows that there was no attendant obligation on Lafontaine's part to indirectly inform him, through Dean, as defendant now suggests.

With respect to Dean, the Court concludes that although Dean had no independent recollection of his conversation with defendant about any immigration issues, the plea minutes demonstrate that some conversation on this issue did take place that day. Thus, when entering the plea, Dean related that he had "discussed everything with" defendant (P:5) and defendant confirmed that Dean "[h]ad explained to [him] that if there are any ramifications to [his] immigration status" by virtue of his plea, he would not be permitted to withdraw this plea at a later time (P: 5-6). And the Court accepts so much of defendant's hearing testimony that indeed such a conversation did occur with Dean.

The Court rejects defendant's assertion that Dean specifically told him that there would be "no problems" with his immigration status if he took the plea in this case. Dean, an experienced defense attorney, knew that a plea to a larceny crime would subject a non-citizen defendant to possible deportation and his practice would have been to advise that client of such possibility (H: 35-36; 30-31). Defendant himself conceded that Dean never told him that "by pleading guilty to the petit larceny [he] would not be deported" (H:18). [*6]

In that regard, the Court was particularly struck by defendant's insistence with respect to his claim that LaFontaine specifically likewise told him that there would be "no problem" regarding his immigration status even as it related to the felony plea. LaFontaine, an experienced attorney, had attended various immigration lectures/programs that apparently left him with a very dim view of the chances of any non-citizen escaping from the wrath of immigration consequences following any conviction. He would convey as much to clients. His notes reflected that he specifically told defendant that deportation was a possibility if he took the felony plea. LaFontaine even sought to obtain a youthful offender adjudication in the hopes of minimizing such possibility (which defendant acknowledges would have saved him from deportation [see, Defendant's Supplemental Trial Brief in Support of Motion to Vacate at p.5 fn1], and is the original ground on which he challenged his deportation [see, Exhibit F to Notice of Motion to Vacate Criminal Judgment of Conviction]). Indeed, he went so far as to discuss defendant's case with a colleague who had been born in Moscow. Under the circumstances, the Court finds this defendant highly incredulous as to his claims regarding the habit of these attorneys in saying that there would be "no problem" with his status.

For all of the foregoing reasons, this Court concludes that defendant has failed to satisfy the first prong of the Strickland test that counsel's representation fell below an objective standard of reasonableness. Specifically, Dean made no affirmative misstatements to defendant, i.e., that he would not be deported if he accepted the guilty plea in this case. Accordingly, defendant's motion fails on that basis (compare, People v. McDonald, 1 NY3d at 115; see, People v. Ford).

Even if this Court were to conclude that such an affirmative misrepresentation had been made, defendant has failed to satisfy the second prong of Strickland 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" (Hill, 471 US at 59).

The hearing minutes reveal that defendant had been most concerned about taking a plea on the felony matter because of the ramifications to his status. All efforts had been exhausted in his attempts to avoid the consequences of that case. The matter was now at the stage where the People were ready to go to trial and defendant had to make an unpleasant choice. As LaFontaine explained, in February 2005, he told defendant that he "had to make a choice between the lesser of two evils" and that "one of the evils of pleading guilty would be it might make him deportable" (H: 48-49). Defendant's mother confirmed that there came a point where defendant had to choose to take the plea offer of four months jail and probation or face the possibility of a minimum of four years in jail if he proceeded to trial. LaFontaine likewise testified that the choice defendant had to make "if he pled guilty he was facing —it would certainly effect (sic) his immigration status, and he could be deported based on the conviction" and that alternatively, if "he went to trial there was the possibility of receiving a much longer sentence after trial than the offer that was on the table so to speak" (H: 47-48). He then chose to take the felony plea (which apparently was to nine months jail).

When he appeared on the instant case, the People answered ready for trial and defendant by then had already been sentenced on the felony matter. He received a disposition which was less than the one- year term that he could have received on the "A" petit larceny conviction, and instead received a 30-day concurrent sentence on a "B" misdemeanor attempted petit larceny plea. While he insists that he was innocent of the crime, that he had merely accompanied a friend to the store to buy the item in question and that store security tapes would prove his innocence, he had no hesitation in admitting his guilt during the plea proceedings. Furthermore, [*7]while he claims that he would not have pleaded guilty had he known that he would be subject to mandatory deportation, he also acknowledged, when specifically asked by this Court during the plea proceedings, that he would not be able to withdraw his plea if there were any ramifications to his immigration status. Accordingly, defendant has failed to demonstrate the requisite prejudice requirement under Strickland and the Court denies his motion on that ground as well.

Based on the foregoing reasons, defendant's motion to vacate the judgment of conviction is denied.

This constitutes the Decision and Order of the Court.

Dated: Brooklyn, New York

September 30, 2007

______________________

Ruth E. Smith,

Judge of the Criminal Court