Defendant moves for an order pursuant to CPL 440.10 and 440.20 to set aside the judgment of conviction and sentence entered upon his plea of guilty to the charge of attempted Petit Larceny (Penal Law §§ 110.00/155.25). The People oppose the motion.

On September 16, 2001, defendant was arrested for stealing $588.00 worth of clothing from Macy's Department Store in Garden City. On February 4, 2002, defendant plead guilty to attempted Petit Larceny and was sentenced to 20 days incarceration and one year probation. The defendant did not appeal the judgment or file any motions pursuant to CPL Article 440.

The defendant now claims that his plea was not knowing and voluntary; that he was denied due process and effective assistance of counsel; and that his attorney did not advise him of any immigration consequences of his plea. The defendant states that his attorney advised him to enter a plea of guilty because he did not have any defenses and would fare worse at trial. The defendant is not a United States citizen and states he is now suffering consequences with the Department of Homeland Security and the Department of Immigration and Naturalization Services. This conviction has proven to be an obstacle in his efforts to remain in this country legally.

In addition, the defense counsel maintains that although the defendant speaks and understands English, it is not his native language. The defendant is more fluent and conversant in Creole and that a Creole interpreter was not used to assist the defendant in understanding what he was entering into. [*2]

The Court finds that defendant's contentions to be without merit and unsupported by case law and the record. Defendant has failed to allege any grounds which constitute a legal basis for relief as required by CPL § 440.30 (4) (a). For a plea to be knowing and voluntary, the defendant must be advised of the direct consequences of pleading guilty and due process does not require that the defendant be told of collateral consequences. The failure by defense attorneys to advise a defendant of the possibility of deportation does not constitute ineffective assistance of counsel. (People v. Ford 86 NY2d 397,404 [1995]). The Court of Appeals held in People v. McDonald (1 NY3d 109, 114 [2003]) that an attorney's failure to advise his client that a guilty plea may result in negative immigration consequences does not constitute ineffective assistance of counsel. It is also settled that failure to advise defendant of the possibility of deportation does not affect the voluntariness of his guilty plea (People v. Argueta, 46 AD3d 46 [2d Dept. 2007]).

Moreover, the New York cases provide that a defendant who is rendered deportable as the result of a plea of guilty entered in ignorance of the potential immigration consequences of the plea is not entitled to post-judgment relief on the ground that the plea was involuntary or on a theory that counsel was ineffective [ see People v. Ford, 86 NY2d 397, 633 NYS2d 270, 657 NE2d 265; People v. Felipe, 15 Misc 3d 1124 (A), 2007 WL 1185671].

(Arugeta at 51)

Here, the defendant does not claim that counsel misinformed him of any immigration consequences just that his counsel failed to advise him of such a possibility. Counsel cannot be required to explain all possible consequence of a guilty plea to a defendant. The court has reviewed the record and there is no evidence to suggest that the defendant inquired about possible immigration consequences and was misinformed. The defendant simply claims that counsel should have volunteered information about any possible immigration results without being asked.

The defendant further argues that the pleas should be vacated because he was denied a Creole interpreter. There is no evidence in the record that the defendant requested an interpreter at the time of the plea or of the sentence. The suggestion that the defendant did not understand what he was pleading to is contrary to the record. The defendant was able to state his name address for the court during the allocution and stated that he had discussed the case and the plea with his attorney. When asked what occurred at the Macy's Department store the defendant responded that he "took some stuff without permission".

While defense counsel moves under both CPL §§440.10 and 440.20, the motion papers do not address the claim under § 440.20, and therefore, the court has not responded to that issue. Based upon applicable case law and fact, there is not a sufficient basis to vacate the judgment

pursuant to CPL§ §440.10 or 440.20. Accordingly the defendant's motion is denied.

So Ordered:

/s/ Hon. Scott Fairgrieve [*3]

DISTRICT COURT JUDGE

Dated:August 4, 2009

cc:Mahmoud Rabah, Esq.

Kathleen M. Rice, District Attorney

SF/kf