Defendant seeks, by pro se motion dated May 4, 2010, to vacate his judgment of conviction for Disorderly Conduct (PL §240.20) dated December 16, 2008 in the above-captioned matter pursuant to CPL §440.10. Defendant asserts that he did not receive effective assistance of counsel since his attorney failed to inform him of the immigration consequences of his guilty plea. Defendant maintains that his guilty plea, therefore, was not entered into intelligently and knowingly. The Defendant is currently detained by Immigration and Naturalization Services in Texas. The Defendant has a motion for similar relief concerning a 2006 conviction for Attempted Assault in the Third Degree (PL 110/§120.00) pending in DV-1 in Criminal Court, Kings County. It should be noted that all the allegations contained in Defendant's motion are made by the Defendant. He submitted no transcripts of the plea allocution or additional affirmations. On November 12, 2010 the People served and filed an Affirmation in Opposition.

The Complaint alleged that on October 27, 2008 at 9:00 a.m. the Defendant pushed and scratched the complaining witness, his wife, when she attempted to enter her bedroom to get dressed for work. The Defendant was arrested and on October 28, 2008 the Defendant was charged with Assault in the Third Degree, Attempted Assault in the Third Degree, Menacing in the Third Degree and Harassment in the Second Degree related to the incident which allegedly occurred on October 27, 2008. The People served and filed statement notice at the arraignment pursuant CPL §710.30 (1)(a) and intended to offer Defendant's alleged statement made to the police who responded at the place of occurrence that "He was trying to prevent the complaining witness from going into his bedroom." The Defendant was arraigned and bail was set. Immigrations and Customs Enforcement (ICE) filed a detainer with the Department of Corrections on October 29, 2008. On October 31, 2008 the complaining witness signed a supporting deposition and the case was adjourned for discovery. On December 4, 2008 the case was transferred to this Court after a Family Court petition for custody was filed by Defendant's wife.

On December 16, 2008 the People were ready for trial. Defendant pled guilty to the added charge of Disorderly Conduct (PL §240.20), a violation and not a crime with counsel Christine Giardino, Esq., of the Legal Aid Society, present. The Defendant was sentenced to [*2]time served and a Final Order of Protection was issued which expired on December 15, 2010. The People had previously offered Defendant a plea to a class A misdemeanor and a 60 day jail sentence.

Two years after Defendant pled guilty, the United States Supreme Court decided Padilla v. Kentucky, 130 S.Ct. 1473, (2010), which held that counsel for criminal defendants are constitutionally obligated to advise their non-citizen clients regarding the adverse immigration consequences of a criminal conviction when they plead guilty to any criminal charges. The scope of criminal defense counsel's Padilla obligation to provide immigration advice to a non-citizen Defendant is balanced against the reasonable probability that Defendant would have insisted on going to trial had they been properly advised as to the immigration consequences of a conviction. An integral part of the analysis of that duty is the possible immigration consequences of this conviction on the Defendant (i.e. the removable or non-removable nature of the offense).

In Padilla v. Kentucky, supra, the Court held that the failure of a criminal defense attorney to properly advise a defendant of the immigration consequences of a guilty plea was a violation of the Defendant's Sixth Amendment right to effective assistance of counsel.

The Defendant, in the instant application, maintains, "My lawyer never explained to me there were to be any Immigration Consequence whatsoever. (Affidavit in Support ¶31). The Defendant contends, "I had no idea that this would seal my faith (sic) with Immigration ... (and) because the consequences were (not) "minor" I would have continued my case and go to trial." (Affidavit ¶35 and ¶37) These claims are unsupported by the record and dehors any transcript of the plea allocution on December 16, 2008. The Defendant did state that he pled guilty to Disorderly Conduct and received a sentence of time served and a Final Order of Protection on December 16, 2008.

Movant contends that his motion, affidavit and the submitted transcript of the Immigration Court proceeding adequately established that Defendant would have insisted on going to trial and would not have pled guilty to Disorderly Conduct had he been properly advised regarding the immigration consequences of that guilty plea.

The People maintain that defense counsel's immigration advice was not constitutionally deficient and that, considering all of the circumstances, especially the extremely favorable plea disposition which counsel obtained on behalf of Defendant, defense counsel provided effective assistance of counsel. The People argue that the plea actually negotiated by counsel provided Defendant with effective assistance of counsel since Defendant faced the possibility of deportation regardless of the course of action he pursued given his 2006 conviction for Attempted Assault and lack of legal status.

There is no allegation by Defendant that his attorney made an affirmative misstatement regarding the possible immigration consequences of a plea to Disorderly Conduct. According to the Defendant, "She said to me if we got to trial I an looking at imprisonment." (Affidavit ¶28). "She advised me to take ... (a) guilty plea ...and (there would) be no immigration consequences [*3]of deportation." (Affidavit ¶27). The Defendant had no legal status in the United States which would permit him to remain in the country at the time he pled guilty to Disorderly Conduct. The Defendant was born in Belize and entered the U.S. in 1994 on a one year visitor's visa which he allowed to expire. In Padilla, the Defendant, a permanent resident of the U.S., pled guilty to a charge which called for mandatory deportation after his defense attorney assured him the conviction would not cause him to be deported. In the case at bar, Defendant pled guilty to Disorderly Conduct which does not call for mandatory deportation according to the ICE's Office of Detention and Removal. A criminal alien or noncitizen may be deported due to a visa overstay or past criminal convictions. (Immigration Defense Project's Deportation Handbook page 7 May 2010).

The People contend that defense counsel provided meaningful representation during the plea allocution, that Defendant was not prejudiced by any alleged misadvice since the conviction did not provide the basis for ICE to begin a removal proceeding, and that the motion based on unsubstantiated and conclusory allegations of ineffective assistance of counsel may be properly denied without a hearing. See, People v. Waymon, 65 AD3d 708, (2d Dept., 2009).

In addition, the People contend that Padilla should not be applied retroactively to the Defendant's application. The Defendant applied for relief from removal and sought to remain in the United States pursuant to an application to adjust his status. In order for the Defendant to file an application to adjust his status, his wife, the complaining witness in the criminal proceeding, would have to file an I-130 petition which could qualify the Defendant for the relief sought. He has no right to that relief.

The Defendant's adjustment of status hearing commenced on February 3, 2010 in Immigration Court and was continued on May 11, 2010 because the Defendant's wife was in Housing Court and could not testify on the original day. The Defendant failed to submit an affidavit from his wife stating that she was, in fact, in Housing Court and failed to submit an Affidavit of Support that demonstrated that he would not become a public charge if allowed to remain in the U.S. which absolutely rendered him ineligible for an adjustment of status.

The People contend further that on May 11, 2010 when Defendant appeared pro se at his removal proceeding in Immigration Court to answer to the charge that he overstayed a one year visitor visa issued in 1994 in violation of the Immigration and Naturalization Act §237[a] 1 [b] he admitted the allegation and conceded removability. (Affirmation in Opposition ¶7). The Immigration Court, on his application for a change of status, determined that the record clearly established that Defendant was subject to removal. "Respondent, acting without benefit of counsel, has admitted the allegations contained in the Notice to Appear and has conceded removability as charged."( Ex. 1 May 11, 2010 Matter of Bevans ). The Immigration Court denied Defendant's application for a change of status based on the fact that such relief was precluded since Defendant failed to submit a proper I-864 Affidavit of Support or other proof that he was unlikely to become a public charge in violation of INA §212 [a] 4 [a] (See Ex. 2, Decision of the Board of Immigration Appeals September 8, 2010). The complaining witness in the criminal proceeding testified at the Immigration Court hearing that she was unable seek a divorce from the defendant at the current time but she was unwilling to support the Defendant [*4]and would file for divorce when she had the necessary funds. Any discussion of the effect of Defendant's criminal record was tangential to the determination of the Immigration Court that Defendant was not entitled to a change in status: "if the respondent were otherwise eligible for an adjustment of status a discretionary denial would be warranted" if the equities were weighed. Id.

Defendant submitted no evidence that his current immigration status was determined in any way by his plea of guilty to Disorderly Conduct on December 16, 2008. Defendant asserts that if he had been made aware of the potential for deportation from his plea of guilty to Disorderly Conduct he would have insisted on a trial. However, the trial transcript of the adjustment of status application hearing before the Immigration Court, a portion of which Defendant submitted to the Court herein, reflected that Immigration Court Judge Robert P. Owens concluded that a decision to remove the Defendant was based on Defendant's failure to establish a status which would permit him to remain in the United States. It is for the Immigration Court to determine if the Defendant deserves a hearing and qualifies for an adjustment of status to allow him to remain in the United States. In that proceeding the complaining witness testified that on October 27, 2008 the Defendant pushed her and prevented her from entering her bedroom to retrieve her clothing. (Transcript Matter of Bevans A-098 013 184 on May 11, 2010). The Immigration Judge found the Defendant to be a less than credible witness and the Complainant to be a credible witness. The Immigration Judge ordered the Defendant to be removed and returned to his native country Belize. The Judge cited the Defendant's inability to establish a means of supporting himself and the complaining witness's testimony that she intended to divorce the Defendant as the basis to deny the application. (Transcript Page 312) The Defendant reserved his right to appeal the denial and requested the determination to become a Final Order. (Transcript Page 314) On appeal, the Board of Immigration Appeals found that the decision which denied the Defendant's application for a cancellation of the order of removal (dated June 5, 2009) and the decision which denied his application for a change of status (dated May 11, 2010) should be affirmed. The Appeals Board held that the Defendant failed to establish that "he was otherwise admissible" to the United States and therefore no finding should be made as to an adjustment of status. (BSA Decision Page 2 September 8, 2010).

The Defendant in the instant application states that he did not receive effective assistance of counsel since his attorney misinformed him or failed to inform him of the immigration consequences of his guilty plea. However, the decision of the BSA and the transcript of proceedings before the Immigration Court make it clear that the Defendant would have been subject to removal from the United States as an alien regardless of his plea to Disorderly Conduct on December 16, 2008.

The People note that the Defendant pled guilty to a reduced charge with a promise of no jail time and at the time he entered his guilty plea he was represented by an attorney. (Affirmation in Opposition November 12, 2010). This Court holds that a formal hearing in this matter is unnecessary since this Court presided over Defendant's proceedings, plea and sentence. Therefore this Court is "presumed to be fully familiar with all aspects of the case." See, People v. Demetsenare, 14 AD3d 792, 793 (3d Dept. 2005) citing People v. Loomis, 256 AD2d 808, [*5]809 (3d Dept 1998), lv. den. 93 NY2d 854 (1999). This Court has also reviewed the record of the underlying proceedings, as well as the submissions of the parties. This Court holds that a formal hearing is unwarranted. See, People v. Robetoy, 48 AD3d 881, 883, (3d Dept. 2008).

A review of the sufficiency of the Defendant's allegation of a deficiency in his plea allocution does not require a hearing before denial of the motion. See, People v. Tinsley, 35 NY2d 926, 927 (1974). The Court must utilize a two-prong analysis to determine if Defendant had the effective assistance of counsel on December 16, 2008. The Court must determine whether counsel's performance was, in fact, deficient, and then determine whether the Defendant suffered actual prejudice as a result of counsel's deficiency. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984); People v. Baldi, 54 NY2d 137, (1981).

This Court will address the issue of the retroactive effect of Padilla. The People assert that Padilla cannot be applied retroactively. In Padilla, a lawful permanent resident of the United States was informed by his counsel that "he did not have to worry about his immigration status" if he plead guilty to transporting a large quantity of marijuana "since he had been in the country" for approximately 40 years. See, Padilla at 1477-1478. This advise was incorrect, and Defendant was subjected to mandatory removal proceedings. Id. at 1477. Padilla was a permanent resident of the United States for over 40 years, served in its armed forces and faced felony drug charges. In pertinent part, the Supreme Court held that counsel's representation fell below an objective standard of reasonableness, citing the first prong of the Strickland test. Id. at 1483. However, the Supreme Court remanded Padilla for a review of whether or not his counsel's failure to notify him of the immigration consequences of his plea prejudiced him, the second prong of Strickland. Id. at 1483.

New York State Supreme Courts have not ruled consistently as to the retroactivity of Padilla, compare People v. Bennett, 28 Misc 3d 575, (Crim. Ct., Bx Cty, 2010) and People v. Garcia , 29 Misc 3d 756 (Supreme Ct., Kings County 2010) which both hold that Padilla is to be retroactively applied in contrast with People v. Kabre, 2010 WL 2872930 (Crim. Ct., NY Cty, 2010) and People v. Sanchez, November 26, 2010 N.Y.L.J. 1202475261309, at 1. (Supreme Court, Queens Cty), where both courts find that Padilla is not to be retroactively applied. This Court holds that the immigration consequences for a non-citizen criminal Defendant considering entering a plea of guilty must be considered and the Supreme Court's holding in Padilla is to be applied retroactively to the instant CPL 440 motion although Defendant failed to file an appeal and almost two years have elapsed since Defendant was sentenced. This Court holds that the Padilla decision is a refinement of a an "old" rule or a bedrock rule (Strickland analysis) and that the rule in Padilla should apply retroactively to a guilty plea taken in 2008.

In People v. Bennett, supra the court ruled that Padilla may be applied retroactively, since the decision "did not announce a new constitutional rule, but merely applied the well-settled rule of Strickland to a particular set of facts". However, in People v. Kabre and People v. Sanchez courts have ruled that Padilla is not to be applied retroactively, since it is a "new " rule despite there being "some support to the view that the Padilla rule is not new." See, Sanchez, at 1.

"The threshold issue in determining whether to apply a constitutional rule retroactively is [*6]characterization of the rule as 'new' or 'old.' It is settled that when a Supreme Court decision applies a well-established constitutional principle to a new circumstance, it is considered to be an application of an old' rule and is always retroactive ... Concern for finality in criminal proceedings however, dictates that new' rules generally not be applied retroactively to cases on appeal [u]nless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applied to these cases which became final before the new rules are announced'....". People v. Eastman, 85 NY2d 265, 275 (1995).

Under the circumstances, the Defendant is seeking to vacate his guilty plea upon the basis the he was not given effective assistance by his defense counsel. It is well-settled that a motion to vacate a judgment of conviction should not be "...employed as a substitute for direct appeal when defendant was in a position to raise an issue on appeal...or could have readily raised it on appeal but failed to do so...". People v. Cooks, 67 NY2d 100, 103 (1986). However a CPL §440 motion may be made at any time after sentencing by the Defendant and can include claims of ineffective assistance of counsel. CPL §440.10-1.

In the case at bar, the Defendant is an illegal alien who pled guilty to a violation which is not a ground for mandatory removal unlike Padilla where the Defendant was a permanent resident assured by defense counsel that his status would preclude deportation but where a felony conviction, in fact, was a ground for mandatory removal. (Padilla at 1478). However an analysis of the issues raised by the Court in Padilla is appropriate since requiring defense counsel to render effective assistance is an old or "bedrock" rule of criminal law jurisprudence.

A review of the record in the instant case reveals that bail was set at $750 at arraignment and according to the DV registry the complaining witness had applied and received orders of protection against the Defendant in 2005, 2006 and 2007 from other courts. The Defendant pled guilty to Attempted Assault in the Third Degree against the same complaining witness in Criminal Court, Kings County in 2006. In the instant matter where the top count was punishable by up to one year in jail the Defendant chose to accept a plea to the added charge of Disorderly Conduct with time served. This transaction occurred after Defendant consulted with defense counsel who made the application to convince the Court to accept a plea to a lesser charge.

In the case at bar, since Defendant has not submitted an affirmation from trial counsel who represented Defendant there is no representation as to whether she provided advice to Defendant regarding the immigration consequences of his guilty plea. If the Court accepts Defendant's uncontested assertion that he specifically asked about the immigration consequences of his plea and was told by trial counsel there were none the Defendant still has not satisfied the first prong of the Strickland test. Trial counsel's performance did not fall below the minimum standards of competent representation if counsel advised the Defendant there would be no mandatory immigration consequences due to his plea to Disorderly Conduct in 2008 since this Defendant was deemed a criminal alien after his conviction of Attempted Assault in the Third Degree in 2006.

The Defendant's claim that counsel's failure to advise him of the potential immigration consequences of his guilty plea was ineffective assistance will not prevail under the [*7]circumstances. In making a claim of ineffective assistance of counsel, the Defendant has failed to meet the first prong of the Strickland test, namely, that counsel's performance fell below the objective standard of reasonableness, and that he was prejudiced as a result. Indeed, under Baldi, the New York standard, the Defendant has likewise failed to demonstrate that counsel failed to provide meaningful representation when the Defendant pled guilty. See, Baldi, supra.

Assuming arguendo, that the initial prong is satisfied, this Court holds that the Defendant does not satisfy the second prong of the Strickland test. The Defendant, in the case at bar, did not suffer actual prejudice even if his counsel rendered ineffective assistance with misadvice as to the consequences of his guilty plea. The Defendant failed to establish, under the second prong of the Strickland analysis that he was prejudiced by any alleged ineffective assistance of trial counsel to advise him of immigration consequences of a plea to Disorderly Conduct. The Defendant should not be allowed to withdraw his plea.

Therefore whether Padilla is applied retroactively or whether it is not (in that case defense counsel's actions would be judged by the standards of effective assistance in 2008) the result would be the same. This Court holds that Padilla should be applied retroactively to CPL 440 motions. If a change in the law is a new application of an old rule or a "watershed" change (so fundamental to the fair administration of justice in the adjudication of innocence or guilt) a retroactive application is mandated. Teague v. Lane, 489 U.S. 288 (1989).

"Pursuant to Teague, new rules of constitutional criminal procedure are applied retroactively in one of two situations: (1) where the new rule places certain kinds of primary, private individual conduct beyond the power of the criminal law making authority to proscribe' or (2) where the new rule alters a bedrock procedural element of criminal procedure which implicates the fundamental fairness and accuracy of the trial." Eastman, at 275, supra; citing Teague at 311-312 citing Mackey v. United States, 401 U.S.667 (1971).

This Court notes that before the Padilla holding, there was no requirement that the trial judge or defense attorney advise a client of the potential immigration consequences of a guilty plea. See, People v. Ford, 86 NY2d 397 (1995). Although the Padilla decision does impose an additional obligation on criminal defense counsel in the context of more stringent immigration enforcement efforts that logically are found subsequent to changed procedures since the September 11, 2001 terrorist attacks, the additional obligation constitutes an application or amplification of an "old" rule which guaranteed mandating effective assistance of counsel. Furthermore, deportation is neither an immediate or automatic consequence following the guilty plea to Disorderly Conduct taken by this Defendant in 2008.

In the case at bar, under the totality of circumstances there are insufficient factual claims to permit a review of the claim of ineffective assistance of counsel by the Defendant. The Defendant waited until sentence of time served was imposed for the plea of guilty to Disorderly Conduct. The Defendant did not raise any claim on direct appeal. The motion is submitted without a transcript of the proceedings, an affirmation from trial counsel or a copy of a single document from the Criminal Court file. The Defendant's claim that the assistance provided by his trial counsel was ineffective is supported only by his conclusory and self-serving affidavit [*8]and Immigration Court transcripts which belie any claim that the plea of guilty to Disorderly Conduce affected his immigration status. In fact, the transcript reflects that the Defendant's current immigration status was not effected by his plea of guilty in the Criminal Court proceeding. When a motion to vacate a conviction alleging ineffective assistance of counsel is submitted without an affirmation from trial counsel such omission is not fatal but such an omission or lack of explanation for the omission may be considered by a Court in denying such a motion without a hearing. See, People v. Morales, 58 NY2d 1008 (1983).

The Defendant has not alleged sufficient facts to support a conclusion that had he received "incorrect" advice regarding any immigration consequences of his plea of guilty to Disorderly Conduct. No evidence was submitted to support a reasonable probability that Defendant would have eschewed the plea and proceeded to trial. The facts submitted by the Defendant reflect that ICE placed a hold on him prior to his plea of guilty and that he was aware of that hold and that he could be deported before the plea was taken. Defendant applied for a change of status so that he could remain in the U.S. after the Immigration Court determined he should be removed. (Transcript page 216). The complaining witness in the proceeding testified in the Immigration Court that she would not petition the government to adjust the status of the Defendant. That court held that even if his wife petitioned the government to change his status and the government considered granting it he would be ineligible for that relief based on the fact that he could not support himself or his family. In addition, even if the Defendant had a petition and a means to support himself "incidents that have resulted in the respondent sustaining convictions for domestic violence or abuse" would discourage the court from exercising that discretion. (Transcript page 216). The Immigration Court pointed out that, "in order to be granted adjustment of status, one of the requirements is that you prove to the Court that you will not become a ward of the state. (Transcript pg. 221) The Defendant did not submit an Affidavit of Support although the proceedings were adjourned many times for the Defendant to submit that document. The government attorney asked the complaining witness, "You plan on filing for a divorce against Mr. Bevans, correct ?" The complaining witness answered, "Yes, once I have the funds together." (Transcript page 299).

The People maintain that even if criminal defense counsel's immigration advice was constitutionally deficient, Defendant failed to prove that he was prejudiced by any alleged deficiency since there is no reasonable probability that Defendant would have pleaded not guilty and would have insisted on going to trial. The "time served" sentence must be considered and the fact that the Defendant was aware that he had an immigration issue since ICE placed a hold on him with the Department of Corrections. U.S. Immigration and Customs Enforcement (ICE), attempts to identify criminal "aliens" for deportation who are incarcerated in state and local prisons like Rikers Island where Defendant was in custody before he pled guilty to Disorderly Conduct. See, United States Immigration and Customs Enforcement, Criminal Alien Program at http:// www.ice.gov. In the criminal proceeding before this Court it is clear that "defendant was not prejudiced' by any of his attorney's alleged shortcomings. It is apparent that Defendant was motivated to plead guilty to a violation with time served in order to avoid a possible prison term. See, People v. Robles-Mejia, 27 Misc 3d 1219(A), (Supreme Court, Bronx. Cty 2010).

It cannot be ignored that Defendant had, in fact, been arrested twice before and on [*9]October 17, 2006 he was convicted of Attempted Assault in the Third Degree (110 - PL §120.00-1) before he pled guilty to Disorderly Conduct in the instant matter. It is apparent that "defendant was willing to pay any price regardless of the immigration consequences to draw the proverbial and most desirable get-out-of-jail-card." Robles-Mejia,supra. The Defendant's bald, conclusory and unsupported allegations that he was ..."not informed" fly in the face of the admitted facts herein. The Defendant was aware before he took the instant plea that he was subject to removal from the United States since ICE was scrutinizing his immigration status before he accepted a plea in the instant criminal proceeding. On October 28, 2008 the Defendant was arraigned on the charges in the instant matter. "On the 29th day of October 2008 Immigration and Customs and Enforcement put a hold on me."(Affidavit ¶23).

In fact, the proceedings before the Immigration Court reveal that the instant plea did not in any part determine, that the Defendant should not be permitted to remain in the United States. It is apparent that at the time Defendant entered his plea of guilty, he was more concerned with remaining at liberty than with any future immigration consequences his plea to a violation might entail. The Defendant had already been convicted of a more serious misdemeanor charge (Attempted Assault in the Third Degree) when he entered the instant plea. The Defendant admitted that he was aware of an ICE detainer or "hold" which was filed against him with the Department of Corrections before he pled guilty to the violation in the instant proceeding.

The Defendant submits no proof of deficiencies in the plea allocution or erroneous advice concerning immigration consequences of the plea from defense counsel. It appears that the Defendant after he gained the benefit of a negotiated plea bargain, in which he pled guilty to a reduced charge, and received a sentence which avoided a possible term of incarceration now would like to withdraw it and start over. "The mere fact that defendant is unhappy with the results of his trial is not a sufficient basis to establish such a lack of meaningful representation." People v. Malave, September 20, 2002 NYLJ, p. 22, col. 2. A Defendant fails to demonstrate prejudice under Strickland where, inter alia, "defendant does not allege that he is actually innocent of the charges to which he voluntarily pleaded guilty". People v. Hayes, 186 AD2d 268, 269, (2nd Dept. 1992). The Immigration Court found the Defendant to be incredible and denied his application for a change in status. The Defendant admitted in the proceeding that he violated the Temporary Order of Protection (TOP) contending that since the Complainant wrote to him while in detention the TOP was vacated. The court ordered the Defendant to be remanded and returned to Belize.

Defendant's CPL § 440 Motion to Vacate

Two years after defendant was sentenced to time served pursuant to his plea of guilty to Disorderly Conduct, Defendant moved to vacate the judgments of conviction pursuant to Criminal Procedure Law § 440.10. The Defendant relies on the Supreme Court's decision in Padilla v. Kentucky to claim that his defense counsel failed to advise him regarding the immigration consequences of his guilty plea which, according to the affidavit of the Defendant, subjects the Defendant to removal from the United States. [*10]

CPL § 440.10 provides, in pertinent part that:

1. At any time after the entry of a judgment, the court in which it was entered may, upon motion ofthe defendant, vacate such judgment upon the ground that:...(h)The judgment was obtained inviolation of a right of the defendant under the constitution of this state or of the United States...

2. ... [T]he court must deny a motion to vacate a judgment when: ...

(c)Although sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's unjustifiable failure to take or perfect an appeal during the prescribed period or to his unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him;

CPL § 440.30 provides the statutory mandates whereby a court sets aside a sentence.

CPL § 440.30 provides, in pertinent part that:

1. A motion to vacate a judgment pursuant to section 440.10...must be made in writing and upon reasonable notice to the people. Upon the motion, a defendant who is in a position adequately to raise more than one ground should raise every such ground upon which he intends to challenge the judgment...If the motion is based upon the existence or occurrence of facts, the motion papers must contain sworn allegations thereof, whether by the defendant or by another person or persons. Such sworn allegations may be based upon personal knowledge of the affiant or upon information and belief, provided that in the latter event the affiant must state the sources of such information and the grounds of such belief. The defendant may further submit documentary evidence or information supporting or tending to support the allegations of the moving papers. The people may file with the court, and in such case must serve a copy thereof upon the defendant or his counsel, if any, an answer denying or admitting any or all of the allegations of the motion papers, and may further submit documentary evidence or information refuting or tending to refute such allegations. After all papers of both parties have been filed, and after all documentary evidence or information, if any, has been submitted, the court must consider the same for the purpose of ascertaining whether the motion is determinable without a hearing to resolve questions of fact ...;

4. Upon considering the merits of the motion, the court may deny it without conducting a hearing if:

(a) The moving papers do not allege any ground constituting legal basis for the motion; or

(b) The motion is based upon the existence or occurrence of facts and the moving papers do not contain sworn allegations substantiating or tending to substantiate all the essential facts, as [*11]required by subdivision one; or...

(d) An allegation of fact essential to support the motion (I) is contradicted by a court or other official document, or is made solely by the defendant and is unsupported by any other affidavit or evidence, and (ii) under these and all the other circumstances attending the case, there is no reasonable possibility that such allegation is true.

In reviewing the Defendant's claim of ineffective assistance of counsel, the Court has considered the motion and defendant's affidavit, the Immigration Court transcript and the Criminal Court file.

Factual Findings and Legal Analysis

The right to effective assistance of counsel is a guarantee mandated in the state and federal constitution (NYS Const. Art 1 & 6; US Const. 6th Amendment). The test for determining the effectiveness of counsel, under federal law, is whether the advice of counsel "was within the range of competence demanded of attorneys in criminal cases." Hill v. Lockhart, 474 U.S. 52, 56 (1985), citing North Carolina v. Alford, 400 U.S. 25, at 31 (1970).

When a Defendant who has been convicted complains of the ineffectiveness of counsel's assistance, the test is a two prong test. First, the Defendant must show that counsel's representation fell below an objective standard of reasonableness. Second, the Defendant must show that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, supra.

In People v. Baldi , supra, the Court of Appeals decided that the right to effective assistance of counsel is met, "So long as the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of representation, reveal that the attorney provided meaningful representation, the constitutional requirement will have been met...."The core of the inquiry is whether defendant received meaningful representation.". See, People v. Benevento, 91 NY2d 708, 712 (1998).

Defendant's claim of ineffective assistance of counsel is unsupported by the movant. The Defendant fails to meet the first prong of the Strickland test: that trial counsel's performance fell below the objective standard of reasonable representation and it fails to meet the second prong of the test: that Defendant was prejudiced as a result of the "below the standard of reasonable representation" performance. However, even under Baldi, the New York standard, the Defendant has likewise failed to demonstrate that counsel failed to provide him meaningful representation when the Defendant pled guilty. See, Baldi, supra.

The Court must utilize the two-prong analysis of Strickland to determine if Defendant, in fact, had effective assistance of counsel during his trial. First the Court must determine whether counsel's performance was, in fact, deficient, and second determine whether the Defendant suffered actual prejudice as a result of the deficiency in the assistance of counsel. See, Strickland; Baldi, supra. [*12]

Before a criminal defendant decides whether to plead guilty, he is constitutionally entitled to the "effective assistance of competent counsel". (Strickland at 686). The first prong of the Strickland test requires the defendant to "show that counsel's performance was deficient" and "fell below an objective standard of reasonableness (Id. at 687-688), which is "essentially a restatement of attorney competence". (People v. McDonald, 1 NY3d 109, 113, [2003] ). In determining whether an attorney's performance is deficient and falls below an "objective standard of reasonableness (Strickland, at 688), courts should assess counsel's performance against "prevailing professional norms" (Id.). The second prong of the Strickland test, also known as the "prejudice" prong, requires the defendant to show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different". (Id. at 694). In the context of an ineffective assistance of counsel claim regarding a guilty plea, however, the prejudice prong more specifically requires the defendant to 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 also, McDonald at 114.

Deficiency Prong of Strickland

In Padilla the Supreme Court recently applied the deficiency prong of Strickland to a criminal defense attorney's advice regarding the immigration consequences of a guilty plea, concluding that "advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel" in criminal cases because "deportation is [now] ... intimately related to the criminal process," "[o]ur law ha[ving] enmeshed criminal convictions and the penalty of deportation for nearly a century"(130 S.Ct. at 1481-1482). In Padilla, the Defendant, a lawful permanent resident of the United States, pled guilty to felony drug distribution after his attorney had erroneously advised him that "he did not have to worry about his immigration status since he had been in the country so long". (Padilla at 1478). This advice was erroneous because of the nature of the charge to which defendant pled guilty-drug trafficking, an "aggravated" felony which made Mr. Padilla's deportation virtually mandatory.

The "seriousness of deportation as a consequence of a criminal plea," persuaded the Supreme Court in Padilla to hold that "counsel must inform his client whether his plea carries a risk of deportation". Id. at 1486. The Court stated that "[t]his is not a hard case in which to find deficiency" (Id. at 1483), and concluded that "constitutionally competent counsel would have advised Padilla that his conviction for drug distribution made him subject to automatic deportation". (Id. at 1478). In Padilla, the Court diminished the importance of a distinction between collateral and direct consequences, as well as the distinction between mis-advice and non-advice (Padilla at 1481-1482, 1484), distinctions which New York courts routinely applied when reviewing ineffective assistance of counsel claims based upon an attorney's alleged failure to provide advice or correct advice, regarding the immigration consequences of a guilty plea. See, People v. Ford, 86 NY2d 397, (1995); McDonald, supra.

Although the Supreme Court held that Mr. Padilla was constitutionally entitled to counsel who would specifically advise him that his guilty plea would result in his automatic removal, the Court recognized that "[i]mmigration law can be complex," and that "[t]here will ... undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain". (Padilla at 1483). [*13]

This Court readily acknowledges that immigration law can be complex but legal complexity by itself should not relieve a criminal defense attorney of their professional responsibility to research and investigate and provide meaningful effective counsel to their clients. There are resources available to the criminal defense bar such as the Immigrant Defense Project (IDP) which routinely provides expert advice to criminal defense attorneys over the telephone regarding the immigration consequences of various crimes contained in New York's Penal Law. IDP also has a very comprehensive website (www. immigrantdefenseproject.org), which provides easily accessible charts that show whether a particular New York Penal Law crime constitutes an "aggravated felony," a "crime involving moral turpitude," or provides the government some "other ground" for deportation, such as a "controlled substance offense" or a "firearm offense."

In the case at bar, Defendant pled guilty to Disorderly Conduct (PL §240.20) a violation and not a crime which did not subject him to removal from the United States. In accepting an offer to plead guilty to a reduced charge the Defendant was eligible to be released on the criminal case and he avoided trial with a possible conviction on charges which would have constituted a removable offense (see,8 USC § 1227[a][2][B][I] ); (8 USC § 1227[a][2][A][I] ). Indeed, it is clear from the documents which the Defendant submitted that he is currently facing removal proceedings based on grounds other than his plea of guilty to Disorderly Conduct. The Defendant in the case at bar unlike Padilla, did not plead guilty to an offense which would have clearly subjected him to "automatic" or "mandatory" removal or deportation, inasmuch as Disorderly Conduct does not constitute an "aggravated felony,"(a sentence with a term of more than one year pursuant to 8 USC § 1101[a][43] and 8 USC § 1227 [a][2][A][iii]; See, INS v. St. Cyr, 121 S.Ct. 2271, at 2293 [referral for deportation of aggravated felons as "certain"]; Zhang v. United States, 506 F.3d 162, 167 (2nd Cir.2007); ["deportation of aggravated felons is now automatic and non-discretionary"]; People v. Argueta, 46 AD3d 46, 50, (2nd Dept. 2007) ["deportation [is] mandatory upon conviction of an aggravated felony"]. The Defendant does not claim in his motion, affidavit or submissions that the instant plea subjected him to automatic or non-discretionary removal from the United States.

Under the totality of the particular circumstances the Court holds that defense counsel satisfied her constitutional duty under Padilla to "do no more than advise a non-citizen client that pending criminal charges may carry a risk of adverse immigration consequences". (Padilla at 1483).

Furthermore, assistance of counsel was not otherwise "deficient" under Strickland's performance prong. On the contrary, counsel pursued a very reasonable strategy on behalf of a Defendant, who faced incarceration until a trial on his criminal charges which, if convicted, would subject the Defendant to a possible year in jail and conviction of an "aggravated felony" subject to mandatory deportation.

It appears that the plea offered in 2008 granted Defendant a disposition which resolved Defendant's criminal matter in a fashion which minimized any immigration consequences to the Defendant and released him from incarceration with a "time-served" sentence. ICE routinely monitors the Corrections Department in a concerted effort to identify criminal alien Defendants subject to deportation removal proceedings. (see United States Immigration and Customs Enforcement, Criminal Alien Program factsheet). Since September 11, 2001 ICE devotes considerable effort to identify criminal alien Defendants who are incarcerated and subject to deportation removal from the United States. For an incarcerated alien, without status to remain [*14]in the United States, the risk of removal from the U.S. can only increase as that alien remains incarcerated. The risk of removal for a criminal defendant alien is reduced when such alien is able to secure a release from jail. In the case at bar, the plea negotiated by defense counsel achieved the possibility of release from custody for the Defendant.

Even when defense counsel's strategy is deemed deficient, judged by an "objective standard of reasonableness" (Strickland at 688) such a strategy may nonetheless effectively place Defendant in the best position to avoid actual deportation. The Defendant in the instant proceeding increased the chance that ICE would not be able to begin proceedings against him by pleading guilty in the hope he may be released before ICE could take custody of him. Even in light of the risk of removal defense counsel's pursuit of a plea offer could objectively be a reasonable part of a legal strategy to resolve the criminal proceeding and allow the Defendant to remain in the United States.

Indeed, in the case at bar, Defendant unquestionably would have been placed in greater jeopardy of removal if he was convicted of Assault in the Third Degree; such a conviction may be considered an "aggravated felony" under federal immigration law (See, 8 USC § 1101[a][43][G] ). An "aggravated felony" designation would also call for a defendant's mandatory removal. (See 8 USC §1227 [a][2][A][iii]); INS v. St. Cyr, supra. In addition, the longer the Defendant remained incarcerated the greater the risk that ICE would commence removal proceedings to deport him.

When the Defendant pled guilty to the violation of Disorderly Conduct he insulated himself from the risk of mandatory removal since a conviction of Assault in the Third Degree, the original misdemeanor criminal charge, with a possible one-year jail term would have continued his incarceration before trial and exposed him to the continued scrutiny of ICE. The Defendant did not set forth any evidence in his affidavit or submissions to demonstrate that he was innocent of the original charges in the accusatory instrument or that he had a viable defense to the original charges.

Prejudice Prong of Strickland

If the Court accepts that Defendant received ineffective assistance of counsel, a vacatur of the guilty plea and conviction on this ground, in the case at bar, would still not be warranted since Defendant has not submitted any evidence affirmatively proving prejudice to the Defendant. (Strickland at 687). The purpose of the Sixth Amendment's effective assistance of counsel guarantee is to ensure that the Defendant has the assistance necessary to "justify reliance on the outcome", and a mistake by counsel does not "warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment". Id. At 691-692. In order to prove prejudice to the Defendant and justify vacatur under Strickland, the Defendant would be required to demonstrate a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different". Id. at 694.

In Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366 (1985), the Supreme Court applied the Strickland prejudice test to cases in which a defendant accepted a plea bargain prior to trial. In the context of an ineffective assistance of counsel claim regarding a guilty plea, however, the prejudice prong more specifically requires a defendant to show that "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have [*15]insisted on going to trial" (Id. at 59). The requirement of a showing of prejudice to a Defendant who seeks to challenge a guilty plea on the ground of ineffective assistance of counsel "serves ... the fundamental interest in the finality of guilty pleas". Id. At 58.

Applying the Strickland prejudice test to a particular case "may pose a difficulty in some cases" to determine if a particular Defendant, in fact, would have proceeded to trial. United States v. Horne, 987 F.2d 833, 835 (D.C. Cir.1993). Nevertheless, it is clear that self-serving, conclusory and unsupported statements that a Defendant would not have pleaded guilty and would have insisted on going to trial are insufficient to establish prejudice. See, Park v. United States, 222 Fed.Appx. 82, 84 (2nd Cir. 2007) [a defendant's "self-serving statements are insufficient to establish prejudice"]; Horne, at 836 [to establish prejudice "a defendant must make more than a bare allegation that he would have pleaded differently and gone to trial "].

Defendant contends that he would not have pled guilty and instead insisted upon a trial if his defense counsel properly and fully advised him of the immigration consequences of a plea of guilty. The Defendant bears the burden of demonstrating that there is no strategic or other good reason for defense counsel's alleged "less than meaningful representation". People v. Rivera, 71 NY2d 705 (1988). In support of that claim, Defendant alleges that he was not aware of the possible immigration consequences of a plea of guilty to Disorderly Conduct. In fact, he has not alleged any immigration consequences that have resulted solely from the plea of guilty to Disorderly Conduct. The Immigration Court transcript submitted by the Defendant supports a finding that Defendant's status as an illegal alien who overstayed a one year visitor's visa led to a determination by the Immigration Court that he should be removed from the United States. The transcript from the Immigration Court and the decisions of the Immigration Court and Board of Immigration Appeals establish that the Defendant could not successfully seek a cancellation of the removal determination since he had no affidavit of support.

The Court holds that the Defendant's self-serving claim that he would not have pled guilty and would have insisted upon going to trial if counsel properly advised him of the immigration consequences of pleading guilty to Disorderly Conduct is less than credible. Defendant's claim is belied by the fact that Defendant acknowledged that he was at risk of deportation before he took the plea since ICE placed a hold on him prior to his plea of guilty to the violation in the instant proceeding. A bare allegation that counsel did not provide information concerning immigration consequences to a plea of guilty cannot be the basis for a vacatur of the plea when that plea of guilty is not the reason the Defendant is being deported.

Accordingly, the Court, applying a prejudice analysis pursuant to Strickland holds that there is no reasonable probability that the Defendant would have insisted on a trial under a totality of the circumstances. An appropriate prejudice inquiry of a guilty plea in a criminal proceeding with a noncitizen must consider the range of pre-trial options available to that Defendant and must ask whether there is a reasonable probability that Defendant would not have pled guilty and insisted upon a trial if the Defendant had been advised of the adverse immigration consequences of a guilty plea andthe adverse immigration consequences of a decision to insist upon a trial. It is true that if Defendant insisted on a trial, he may have been found guilty on each of the removable offenses charged in the criminal complaint. [*16]

The Defendant did not set forth any particular special circumstance to support his contention that he placed particular importance on the immigration consequences of a plea to Disorderly Conduct before deciding whether or not to plead guilty. See, People v. Garcia, supra. [prejudice was found where, prior to pleading guilty, a Defendant diligently sought to ascertain whether the proffered plea placed him at risk of deportation]; People v. Williams, 72 AD3d 1347 (3rd Dept. 2010) [prejudice hearing ordered where affidavit demonstrated "that defendant repeatedly expressed reservations about pleading guilty if such a plea might lead him to being deported"]; United States v. Couto, 311 F.3d 179, 188 fn. 9 (2nd Cir.2002) [prejudice found where Defendant's "whole behavior-including her alleged crime-was designed to avoid deportation"].

Finally, this Court has examined the plea bargain as reflected in the court file. The Defendant fails to assert that he was innocent or had a defense to the charged offenses. See, Hayes, supra. Further, the Defendant obtained an extremely favorable disposition when he pled guilty to the reduced charge of Disorderly Conduct. Defendant received a sentence of time served. Had the Defendant been convicted of the top count in the Complaint, after a trial, he could have been sentenced to a year in jail. The Defendant does not acknowledge in the instant application that a conviction after trial, of the top count, would have engendered worse immigration consequences than the plea of guilty to the reduced charge or the meaningful benefit to him when he avoided the possibility of a significant jail term.

The Defendant's motion to vacate the judgment of conviction claiming defense counsel failed to advise him of potential immigration consequences of a plea of guilty to Disorderly Conduct is without merit. The Defendant's claim that his attorney was ineffective for failing to advise him of potential immigration consequences, pursuant to Padilla v. Kentucky, is rejected by this Court. Although the Defendant was a non-citizen, he was previously convicted of a more serious criminal charge in another criminal proceeding prior to the time he pled guilty in the instant case. Under the totality of the circumstances, this Court holds that defense counsel did not provide 'ineffective' or 'less than meaningful' representation to Defendant at the time of the guilty plea. The Defendant was not prejudiced by the negative immigration consequences from this plea. This Court holds that Defendant failed to demonstrate that there is a reasonable probability that, but for counsel's error [if there was an error], he would not have pled guilty and would have insisted on going to trial. Accordingly, the Defendant's motion to vacate his judgment of conviction is denied without a hearing.

The foregoing constitutes the Order and Decision of this Court.

Enter,

_________________________Esther M. Morgenstern, J.S.C.