Upon consideration of the defendant's instant motion to vacate the judgment of conviction entered against him, the Court has considered the following papers: notice of motion to vacate judgment and affidavit in support of counsel for the defendant, Bruce Richardson, Esq., and affidavit of the defendant, and the affirmation in opposition and memorandum of law of Assistant District Attorney John James Sergi. Upon these submissions, the instant motion is decided as follows:

Factual Findings

Under the instant indictment, the defendant was charged with a single count of Rape in the second degree in violation of Penal Law § 130.30(1) ["being a male eighteen years old or more, engaged in sexual intercourse with a female less than fourteen years old"], three counts of Rape in the third degree in violation of Penal Law § 130.25(2), three counts of Sexual Abuse in the second degree in violation of Penal Law § 130.60(2), four counts of Sexual Abuse in the third degree in violation of Penal Law § 130.55, and a single count of Endangering the Welfare of a Child in violation of Penal Law § 260.10(1). The defendant was charged with the offenses contained in the instant indictment based upon allegations that he engaged in various types of sexual activity including sexual intercourse with a minor female, who was 13 years-of-age, on or [*2]about and between August 20, 1998 and August 25, 2000 at two distinct locations within the County of Westchester.

On November 8, 2000, the People commenced the instant criminal action by filing a felony complaint in the Yonkers City Court in the absence of the defendant's presence, as the defendant could not be located by law enforcement authorities. On April 24, 2001, the People filed the instant indictment in the absence of the defendant's presence, as he still could not be located, and an arrest warrant was issued for his arrest. In September of 2002, the defendant was located in Jamaica, West Indies, and extradition proceedings were commenced by the People. Following extradition proceedings conducted between the People and the government of Jamaica, West Indies, the defendant was extradited to the United States on April 28, 2004. On May 17, 2004, the arrest warrant for the defendant was executed in the presence of his retained attorney, Louis A. Ecker, Esq., he was arraigned under the instant indictment before the Westchester County Court (Zambelli, J.) and entered pleas of not guilty to all counts charged thereunder. The defendant's case was then transferred to this Court for further proceedings, including the filing of an omnibus motion on the defendant's behalf by defense counsel, who moved for various forms of relief including the dismissal of the indictment. On August 4, 2004, the Court filed and entered a Decision and Order upon the omnibus motion, denying those defense applications which sought the dismissal of the indictment, which lead to a conference of the case between the parties and the Court on August 18, 2004 regarding a potential disposition of the indictment upon the acceptance of a plea agreement.

On September 9, 2004, the defendant appeared before this Court in the presence of his retained attorney, Mr. Ecker, who advised the Court that the defendant was prepared to avail himself of the plea offer conveyed by the People for the disposition of the case. The Court placed the terms of the plea offer upon the record to confirm the accuracy of the defendant's understanding of its terms, indicating that the defendant would be required to enter a guilty plea to the crime of Rape in the second degree, charged as a class "D" non-violent felony offense under Count Four of the instant indictment, in exchange for the full satisfaction of the remaining counts charged thereunder. This Court also advised the parties that upon its acceptance of the defendant's guilty plea, it would commit to sentence him to serve a definite term of incarceration of one year, to pay a mandatory surcharge of $210.00 and to comply with the terms of a final order of protection in favor of the victim. The Court then asked Mr. Ecker if this accurately reflected his understanding and the defendant's understanding of the terms of the proposed plea agreement, which prompted Mr. Ecker to state that he had previously discussed the specific terms of that plea agreement with the defendant who was agreeable to same.

In a very clear and deliberate manner, Mr. Ecker then withdrew the defendant's previously entered plea of not guilty and entered a guilty plea on the defendant's behalf to the crime of Rape in the second degree as charged under Count Four of the instant indictment. The Court then observed the defendant provide answers, under oath, to the detailed questions asked by Assistant District Attorney Juel Hodge during her voire dire of the defendant in connection with the entry of his guilty plea. The Court also carefully observed the defendant's demeanor and listened to the inflections of his voice throughout these proceedings, noting that the defendant responded to all questions asked of him in a confident and clear manner, without any equivocation or hesitation. Significantly, the Court notes the defendant's affirmative response to Assistant District Attorney [*3]Hodge's question concerning his satisfaction with the representation and advice provided by his counsel in connection with this matter, as well as his indication that he had an adequate opportunity to discuss the consequences of his guilty plea with his counsel. The Court further finds particular significance in the defendant's unequivocal affirmative response to Assistant District Attorney Hodge's question of him concerning his understanding that his guilty plea might result in his deportation and exclusion from the United States if he was not a citizen of the United States. The defendant also stated that he was pleading guilty because he was, in fact, guilty of the charge to which he was entering his guilty plea, that he understood the Court's sentence commitment, that his plea was being entered freely and voluntarily in the absence of any force or coercion, and that noone had made any other promise or representation to him which differed from the Court's sentence commitment. Upon this record, the Court accepted the defendant's guilty plea and scheduled this matter for sentencing on November 3, 2004, when the defendant was sentenced in accordance with the foregoing terms of the negotiated plea bargain. Significantly, in advance of the imposition of sentence, the defendant was interviewed by Probation Officer Judie Skelton of the Westchester County Department of Probation in connection with her preparation of a Pre-Sentence Investigation Report (PSR)^[FN1], who related therein that during her interview of the defendant he had stated to her that his lawyer had already advised him that he would be deported upon his release from incarceration.

On March 10, 2005, this Court conducted a risk level determination proceeding pursuant to Article 6-C of the Correction Law, otherwise known as the Sex Offender Registration Act (SORA), to determine the defendant's appropriate risk level classification. The defendant appeared before the Court with Mr. Ecker for this proceeding, neglecting to raise any issue before the Court concerning his lack of knowledge at the time of the entry of his guilty plea of his obligation to register as a sex offender under SORA upon his release from incarceration. By Decision and Order, filed and entered on March 30, 2005, this Court determined that the defendant was a Risk Level Two sex offender under SORA and directed him to comply with the registration and notification provisions applicable under Article 6-C of the Correction Law.

Based upon the Court's review of the records maintained by the Unified Court System, the defendant did not pursue a direct appeal of either his judgment of conviction or his imposed sentence to the Appellate Division, Second Department, nor did he seek to appeal his classification as Risk Level Two sex offender under SORA. Furthermore, it appears from the defendant's moving papers that he remained at liberty until he was apprehended at his residence by members of the Bureau of Immigration and Customs Enforcement (B.I.C.E.) on June 8, 2010, which is presently pursuing deportation proceedings while the defendant remains confined at the South Texas Detention Complex located in Pearsall, Texas.

The defendant brings the instant application seeking to set aside the judgment of conviction entered against him under the instant indictment pursuant to Criminal Procedure Law (CPL) 440.10(1)(h), upon two distinct grounds sounding under a claim that he was denied the [*4]effective assistance of counsel with respect to his decision to enter his guilty plea in this case. In this regard, the defendant claims that he was denied the effective assistance of counsel due to the failure of his retained attorney to advise him of either the potential immigration consequences of his guilty plea, or of his resultant obligation to register as a sex offender under SORA as codified in Article 6-C of the Correction Law.

Initially, the People oppose the defendant's instant application to vacate his judgment of conviction upon procedural grounds, arguing that the instant motion is subject to summary denial pursuant to CPL 440.30(4)(b) due to the failure of the defendant to support his motion with necessary factual averments set forth in competent sworn form. The People further oppose the defendant's instant application upon the merits insofar as same is based upon his factual claims that his retained attorney failed to advise him of the consequences of his guilty plea pertaining to his immigration status and his obligation to register as a sex offender under SORA, arguing that the defendant has failed to establish that the conduct he attributes to his retained attorney with respect to the plea proceedings in this case was of such a deficient nature that it violated the defendant's right to the effective assistance of counsel under the Sixth Amendment to the United States Constitution.

Pursuant to the terms of CPL 440.10(1)(a)-(h), the grounds upon which a defendant may seek to vacate a judgment of conviction are specifically limited to those prescribed through the statute, upon application of the criteria set forth therein (see People v Jackson, 78 NY2d 638). As the defendant's instant vacatur application is based exclusively upon his two-fold claim that he was deprived of the effective assistance of counsel by his retained attorney prior to the entry of his guilty plea, the Court finds that the defendant's claim raises an issue of constitutional dimension recognized by CPL 440.10(1)(h) which provides that vacatur may be granted where "[t]he judgment was obtained in violation of a right of the defendant under the constitution of this state or of the United States", and will consider the merits of the instant application.

Turning first to consider the People's procedural challenge to the instant application, the Court notes that CPL 440.30(4)(b) provides for the summary denial of a vacatur motion where "[t]he 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 the defendant's instant vacatur motion is based entirely upon his factual claims that he was denied the effective assistance of counsel due to the failure of his retained attorney to advise him of either the potential immigration consequences of his guilty plea, or of his resultant obligation to register [*5]as a sex offender under SORA, it is essential for the defendant, or another person or persons with knowledge thereof, to have set forth and submitted sworn allegations of fact in support of those factual claims for consideration by the Court (see CPL 440.30[4][b]; see also People v Ford, 46 NY2d 1021; People v Wells, 265 AD2d 589; People v Lake, 213 AD2d 494; People v Lawson, 191 AD2d 514). Significantly, the Court notes that the defendant's ineffective assistance of counsel claims are supported solely by his notarized unsworn statement which is annexed to the instant application as an exhibit, in the absence of any sworn allegations of fact from Mr. Ecker in his capacity as the defendant's retained attorney when his guilty plea in this case was entered and his sentence was imposed. Of further significance, the Court notes that the defendant's notarized statement was not sworn, was not made after being duly sworn, nor was it hazarded under the penalty of perjury, despite the absence of any such sworn allegations of fact from any other party with knowledge of essential facts claimed by the defense in support of the instant application. Accordingly, the defendant's challenge to the quality of Mr. Ecker's legal representation cannot be sustained upon the state of the record presented, as the defendant's motion is devoid of any sworn allegations of fact which either demonstrate or tend to demonstrate that he was deprived of proper legal advice concerning the potential deportation consequences and SORA requirements of his guilty plea, or that he would have foregone entry of his guilty plea and proceeded to trial if he had been provided with proper legal advice in that regard (see CPL 440.30[4][b]; People v Rivera, 71 NY2d 705; People v Fields, 287 AD2d 577; People v Rodriguez, 186 AD2d 632; People v Hayes, 186 AD2d 268; People v Ahmetovic, 157 AD2d 489). Based upon the foregoing, the defendant's failure to provide this Court with any sworn averments supporting or tending to support any of his factual claims concerning the legal advice he received from his retained attorney warrants the denial of the instant application without a hearing.

Moreover, even assuming that the defendant's moving papers had been supported by properly sworn factual allegations, his application seeking the vacatur of the instant conviction would still be unavailing. With respect to the defendant's claim that he was unaware of the potential deportation consequences of his guilty plea due to his retained attorney's failure to advise him of same prior to entry of his guilty plea, the basis for same is refuted by the stenographic record of his plea allocution which clearly reflects that the defendant specifically acknowledged on the record that he understood that his guilty plea might result in his deportation from the United States. Furthermore, the statements attributed to the defendant during his PSR interview clearly reflect that he advised the investigating probation officer that his retained attorney had already advised him that he would be deported upon his release from incarceration. Upon consideration of the foregoing, the Court's application of the recent holding of the United States Supreme Court in Padilla v Kentucky (559 US ___, 130 S.Ct. 1473)^[FN2] to the instant case does not require that the defendant's conviction be vacated upon his claim that his retained attorney failed to advise him of the potential deportation consequences of his guilty plea.

With respect to the defendant's claim that he was unaware of the SORA requirements of [*6]his guilty plea due to his retained attorney's failure to advise him of same prior to entry of his guilty plea, it is significant to note that although the courts are required to advise defendants who enter guilty pleas of the "direct consequences" of their guilty plea and the resulting conviction, the courts are not required to advise defendants of the "collateral consequence" of same (People v Harnett,___ NY3d ___, 2011 NY Slip Op 00744; People v Gravino, 14 NY3d 546, 553-554; People v Catu, 4 NY3d 242, 244; People v Ford, 86 NY2d 397, 403). In this regard, collateral consequences of a conviction are those that are "peculiar to the individual and generally result from actions taken by agencies that the court does not control", whereas direct consequences are those which have a "definite, immediate and largely automatic effect on [a] defendant's punishment" (People v Catu, 4 NY3d at 244, quoting People v Ford, 86 NY2d at 403). Indeed, it is now well-settled that "a SORA risk level determination is not part of a defendant's sentence[;] . . . it is a collateral consequence of a conviction for a sex offense" (see People v Windham, 10 NY3d 801). As a corollary to this principle, the Court of Appeals further instructed that SORA registration requirements are not considered "direct consequences" of a guilty plea and therefore the courts need not address them when taking a guilty plea to an enumerated offense under SORA, nor will a "court's neglect to mention SORA . . . during the plea colloquy . . . undermine the knowing, voluntary and intelligent nature of a defendant's guilty plea." (see People v Gravino, 14 NY3d 546, 550). Consistent therewith, it is now well-settled that an alleged failure of a defense attorney to provide a defendant with advice concerning collateral consequences of his or her guilty plea, such as the requirement to register under SORA, does not constitute grounds for an ineffective assistance of counsel claim under Strickland v Washington (466 US 668), nor does it affect the resulting conviction (see People v Gravino, 14 NY3d at 554; see also People v Ford, 86 NY2d at 403).

Indeed, this result is further compelled by the failure of the defendant to satisfy the second prong of the so-called Strickland test (Strickland v Washington, 466 US 668) for evaluating claims of ineffective assistance of counsel under the Sixth Amendment to the United States Constitution, as the defendant has failed to establish that there exists a reasonable probability that he would have refrained from pleading guilty and insisted on proceeding to trial if it were not for his retained attorney's alleged failure to properly advise him of the deportation consequences and SORA requirements of his guilty plea (see Hill v Lockhart, 474 US 52; see also Bao Lin Xue, 30 AD3d 166). Furthermore, the defendant's complete failure to support the instant application with as little as an unsworn assertion of innocence of the crime of conviction ^[FN3], to the effect that he did not engage in sexual intercourse with the complainant when she was 13 years-of-age, compels the Court to find that the defendant has not made a prima facie showing of prejudice in connection with his ineffective assistance of counsel claim (see People v McDonald, 1 NY3d 109).

Furthermore, [*7]

the defendant's claim of ineffective assistance of counsel is also refuted by the fact that he received a very advantageous plea, as his retained attorney was able to negotiate a plea bargain in which the defendant pleaded guilty to a single count of Rape in the second degree with a sentence commitment of a definite term of incarceration of one year in the Westchester County Jail in full satisfaction of three other counts of Rape in the third degree and other related counts which could have been designated to run consecutively to the crime of conviction (see People v Ford, 86 NY2d ; People v Boodhoo, 191 AD2d 448).

To the extent that the defendant further makes some references in one of the exhibits annexed to his moving papers suggesting that he felt somewhat pressured by his retained attorney to enter his guilty plea, the Court notes initially that the defendant's attorney has not raised this ground as one of the bases for the vacatur of the instant judgment of conviction in his moving papers. However, to the extent that the defendant does allude to such a ground for relief in his unsworn statement annexed to the instant motion, the Court notes that a claim to the effect that "a plea of guilty was secured by coercion and intimidation" may be properly denied without a hearing where the "defendant failed to submit an affidavit from the attorney who represented him [or her] at plea and sentence or offer an explanation of his [or her] failure to do so" (see People v Morales, 58 NY2d 1008, 1009; see also People v Lowrance, 41 NY2d 303, 304-05; People v Dixon, 29 NY2d 55). Accordingly, as the defendant has failed to provide the Court with any sworn allegations of fact in support of this claim on his own behalf or from his retained attorney, vacatur of the instant judgment of conviction upon this claim of coercion is denied. Based upon the foregoing, the defendant's instant application seeking the vacatur of the judgment of conviction entered against him under the instant indictment is summarily denied without the need for a hearing (see People v Satterfield, 66 NY2d 796, 799; People v Griffin, 24 AD3d 972, 974, lv. denied 6 NY3d 834; People v Demetsenare, 14 AD3d 792, 793).

The foregoing shall constitute the Decision and Order of the Court.

Dated: White Plains, New York

April 4, 2011

Honorable Richard A. Molea

Acting Justice of the Supreme Court