Defendant, indicted for Grand Larceny in the Second Degree, pled guilty to attempted Grand Larceny in the Second Degree and was sentenced on August 16, 2006, to a term of one year.^[FN1] She now moves to vacate the conviction pursuant to C.P.L.§440.10(1)(b) and (h), complaining that the court and her former retained counsel did not "adequately inform, and in fact mis-informed [sic] her as to the dire [immigration] consequences of her plea." As part of her petition, she has submitted an affidavit of her former lawyer. He states that he did not consider defendant's immigration status in advising her about the plea and assumed she was a citizen. At

the plea, the court, equally ignorant of defendant's citizenship status,^[FN2] informed her that "[i]f you are not a citizen of the United States this conviction could result in deportation, denial of citizenship, denial of re-entry should you leave the country."

Defendant now faces mandatory deportation for an aggravated felony. She asserts that had she known deportation was mandatory, she would have fought the case so that she could [*2]remain in the United States with her infant son, who was born in the United States.^[FN3] At the same time, she concedes that the evidence against her was very strong, as she must, given her confession and the paper trail she laid during her four years of embezzling more than $100,000 from her employer. She argues, however, that she would have gone to trial in any event, as she was unlikely to have received much more than the minimum after trial. There is no valid excuse for defendant's failure to place this issue on the record prior to her conviction and no good cause shown to grant the motion notwithstanding defendant's lack of due diligence in this regard. Her motion is denied.

Discussion

As the People argue, defendant essentially wants a resentence which would relieve her of mandatory deportation. Indeed she makes this request explicit in her reply papers as an alternative remedy to vacatur of the plea. The People argue that even were deportation discretionary, as it would be had defendant's sentence been even one day less than a year, defendant would be unlikely to prevail against deportation, given the nature of the offense here and her prior larceny conviction. They may be correct. See, e.g., Caesar v. Ashcroft, 355 F.Supp. 693 (S.D.N.Y.2005). But the hypothetical outcome of a discretionary deportation proceeding cannot determine the legal issue here. Similarly, the legal issue cannot be decided by considering whether the defendant deserves the sympathy she tries to invoke or whether the State's interest in finality is adequately served by the de minimis nature of the relief defendant seeks. Federal legislation sets forth the conditions for permitting the privilege of permanent resident alien status, and it is not for this court to criticize that legislation as draconian. Nor need this court comment on the People's argument that deportation to Barbados is not so harsh a fate, either for defendant or her child, as defendant argues. Sympathy or not, harsh or fair, defendant is not entitled to relief pursuant to C.P.L.§440.10(3)(a).

Defendant now claims, with dubious credibility, that had she known of the certainty of deportation, she would have gone to trial. She argues that although the maximum sentence was five to fifteen years plus restitution, she was unlikely to receive a sentence much more than the minimum of one to three years in State Prison after trial. This too is not without doubt, as the evidence in this case was that defendant engaged in repeated larcenies over several years after having been convicted of a misdemeanor for a previous substantial larceny. Morever, defendant makes no effort to explain why she made no further inquiry of the court or counsel after the court warned her of possible deportation issues. Additionally, she makes no claim of factual innocence and she makes no effort to deny the strength of the case against her.

It may be that this portion of her claim could not be resolved without a hearing. But see United States v. Mora-Gomez, 875 F.Supp.1208, 1214 (E.D.Va.1995)("If petitioner's conviction was highly likely or virtually certain, then it is very likely he would have pled guilty even had he received accurate advice concerning deportation, since conviction at trial would have resulted in [*3]a greater sentence as well as deportation"). Accordingly, the court considers an alternative ground for denying her motion.

Defendant does not explain why she made no affirmative effort to look after her interests with respect to remaining in the United States. Common sense dictates that guest privileges may well be revoked for the failure to obey the laws of your host county. Moreover, the court also warned her of this possibility. Still, defendant prior to her sentence betrayed no apparent curiosity as to the odds this happening. Yet she argues that, after she learned she would be deported, she "felt betrayed by the failure of her former counsel to protect her interests." Her lawyer should not be faulted for not divining that her parental concerns were in reality concerns about deportation. His performance was plainly not deficient under the holding of People v. McDonald, 1 NY3d 109 (2003).

The court advised defendant at the time of her plea, pursuant to C.P.L.§220.50(7), of the possibility of deportation for a noncitizen, but six weeks later, at the time of sentence, defendant had not inquired for clarification by the court, or her lawyer, or an immigration lawyer. Before sentence, a motion to withdraw defendant's plea on this basis might have been favorably received by the court; possibly the People would have responded favorably to an effort to renegotiate the negotiated sentence. But with respect to this petition for post-conviction relief, the court's advice' was not incorrect but only ambiguous: in this context there was nothing about the word "could" which would lead a reasonable person to be confident that deportation was unlikely or could be successfully resisted.^[FN4] This case is accordingly entirely distinguishable from United States v. Couto, 311 F.3d 179 (2nd Cir.2002)(defendant's timely motion to withdraw plea should have been granted where counsel affirmatively misled defendant by advising that deportation was not mandatory and could be avoided).

Zhang v. United States, 401 F. Supp.2d 233 (E.D.NY 2005), relied on by the defendant, is also distinguishable. In Zhang, the court concluded that where the judge at the time of the plea told the defendant he "could" be deported, the prosecutor told him he faced "possible" deportation, and defense counsel advised defendant that he had good grounds to fight deportation although he also recommended that defendant seek advice from an immigration attorney, defendant had been affirmatively misadvised about the deportation consequences of his conviction. On the other hand, in Shef v. United States, 2007 WL 812104 (E.D.N.Y.2007), where the court at the plea had advised the defendant that as a result of his plea, he "would be subject to being deported," and his plea agreement specified deportation as one of the statutory penalties, the defendant was "put . . . on notice that deportation was a likely consequence of his sentence." The decision also stresses the fact that Shef made no application to withdraw his plea until almost a year after sentence. [*4]

If Zhang stood for the proposition that the word "could" alone automatically misleads a defendant into believing that deportation is permissive and not mandatory, this court would be compelled to disagree with the learned District Judge. But the facts in Zhang put that "could" into an entirely different context than in this case. One "could" win the lottery or "could" be on time for work, a range from highly unlikely to highly likely. Here, the defendant unjustifiably assumed without seeking more information that "could" should be interpreted in its most optimistic light. The state has too great an interest in the finality of convictions to permit relief in these circumstances.

Defendant's problem was indeed peculiar to her personal circumstances (People v. Ford, 86 NY2d 397, 403[1995]). Yet, she chose not to share those circumstances with her former lawyer and indeed apparently lied to the police about her birthplace, resulting in a NYSID that reported her place of birth as the United States. It can hardly be said that counsel was ineffective because he did not intuit the possibility of noncitizenship from defendant's attendance at a church attended by people from the West Indies, as that birthplace hardly indicates that a person has not become a citizen of the United States. And if the court's advice was incomplete or misleading, as defendant argues, that was because the defendant failed to inquire further, either of the court or counsel. The court need not speculate on the reasons why an educated, professional person with the resources to hire counsel behaved so improvidently. Whether deportation was the last issue on her mind or she hoped that if she kept quiet no one would notice her immigration issue, she is not entitled to relief at this point.

Finally, resentence would not be an appropriate remedy even were defendant entitled to relief. The catchall phrase ending C.P.L.§440.10(4) does not override the specific prohibition of C.P.L.§430.10. This court is without jurisdiction to change the entirely legal sentence in this case unless the plea and judgment thereon were to be vacated, and a plea renegotiated for a lesser sentence than originally imposed or than mandated on the top count of this indictment (that is an indeterminate sentence of one to three years in State Prison).

Accordingly, defendant's application is in all respects denied.

It is so ordered.

Dated: New York, New York

October 10, 2007

_________________________

BERKMAN, J.