Defendant McLartey was convicted after a guilty plea of criminal sale of a controlled substance in the third degree, and on March 24, 2010, sentenced to six months of incarceration. Defendant now moves, pursuant to CPL § 440.10, to vacate the judgment of conviction and withdraw his guilty plea, on the grounds that his lawyer provided ineffective assistance of counsel because he failed to determine that defendant was not a citizen and advise him that he faced deportation as a result of his conviction. The People oppose the motion.

Defendant was arrested on October 10, 2006 after providing an undercover police officer with two twists of cocaine in exchange for pre-recorded buy money. When defendant was arrested immediately after the sale, he threw 12 twists of cocaine to the ground, which were recovered, along with the pre-recorded buy money from his pocket. He was indicted and charged with criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree. After defendant failed to return to court on April 19, 2007, a bench warrant was issued. Following a re-arrest, defendant involuntarily returned to court on January 15, 2010, and pled guilty before me on February 3, 2010 to criminal sale of a [*2]controlled substance in the third degree, in exchange for a promise of six months' incarceration.^[FN1] During the plea allocution, defendant informed the court that he was a United States citizen. He also told the Probation Department that he was born in Brooklyn in 1982, and apparently informed the police after his arrest that he was born in New York (See On-line Booking Sheet, attached to People's Response).

In fact, defendant was born in Jamaica, and he entered the United States as a "lawful permanent resident" in 2003, about three years before his arrest in this case (see Exhibit B, attached to Defendant's Motion). According to an affidavit submitted by the defendant, at the time of the plea, he believed he was a citizen, having "derived citizenship through [his] mother," who had become a naturalized citizen on July 30, 2009 (Defendant's Affidavit). Defendant further claims that "my lawyer was aware that I believed that I was a derivative citizen." Defendant also claims that had he been aware that his belief that he was a citizen was incorrect, he would have elected to go to trial, and also to "challenge the search and seizure issues in the case." On February 11, 2011, defendant was ordered deported, and he is currently in the custody of Immigrations and Customs Enforcement (ICE).^[FN2]

Defendant claims that his lawyer was ineffective because he made an "erroneous assumption" that defendant was a citizen, and thus gave erroneous advice regarding the adverse immigration consequences that could result from a guilty plea, and, therefore, under Padilla v. Kentucky, 130 S. Ct. 1473 (2010), defendant is entitled to vacatur of his conviction. The People argue that since defendant affirmatively represented he was a citizen, counsel would have no reason to question that status, and, moreover, defendant cannot establish that he was prejudiced by his lawyer's conduct.

Courts have divided on the question whether Padilla is to be applied retroactively in post-conviction proceedings such as this one. Compare People v. DeJesus, 30 Misc 3d 1203 (A) (Sup. Ct. NY 2010); People v. Nunez, 30 Misc 3d 55 (Sup. Ct. App. Term 2010); People v. Garcia, 29 Misc 3d 756 (Sup. Ct. Kings 2010); Comm. v. Clarke, 2011 WL 2409894 (Mass. June 17, 2011), with People v. Andrews, 2011 WL 1827891 (Sup. Ct. Kings 2011); People v. Kabre, 28 Misc 3d 307 (Crim. Ct. NY 2010); Ellis v. United States, 2011 WL 2199538 (E.D.NY June 6, 2011).

For purposes of this decision, I am assuming without deciding that Padilla applies to the instant case. Having made that assumption, this court must undertake a two-pronged analysis in determining defendant's claim of ineffective assistance of counsel: first, whether counsel's performance fell below an objective standard of reasonableness as measured by reference to "prevailing professional norms." Strickland, 466 U.S. at 688; see also Padilla, 130 S. Ct. at 1482. The Padilla Court held that counsel's performance fell below that standard when he or she failed to inform the defendant of the "clear" immigration consequences of a guilty plea, or, where the consequences were unclear, failed to advise the "noncitizen client that pending criminal [*3]charges may carry a risk of adverse immigration consequences." 130 S. Ct. at 1483.

The second prong requires the court to determine if the defendant suffered any prejudice as a result of counsel's ineffective performance. In this context, the defendant must demonstrate that his claim that he would have rejected the plea bargain would have been "rational" under the circumstances. Padilla, 130 S. Ct. at 1485; see also Roe v. Flores-Ortega, 528 U.S. 470, 480, 486 (2000).

Defendant's claim here presents an unusual twist on the usual fact pattern. Unlike most Padilla-type claims, defendant does not allege that his lawyer gave him incorrect advice or failed to advise him of immigration consequences, knowing that he was not a citizen. Instead, defendant asserts that he himself believed that he was a citizen, but counsel was deficient in not determining that he was incorrect in his assumption.

To establish his claim, defendant asserts only that, "My lawyer was aware that I believed that I was a derivative citizen" (Defendant's Affidavit). A motion pursuant to C.P.L. § 440.10 may be denied without a hearing if an "allegation of fact essential to support the motion" is "made solely by the defendant and is unsupported by any other affidavit or evidence," and, under all the circumstances of the case, there is "no reasonable possibility that such allegation is true." C.P.L. § 440.30 (4) (d).

Here, defendant's claim that he told his lawyer that he was a "derivative" citizen, and not just that he was a "citizen," is supported only by the barest assertion in his affidavit. He provides no details or specifics about what he told his lawyer, only that his lawyer somehow "was aware" of his belief, and he provides no information about what his lawyer told him in response. Furthermore, defendant's current claim is belied by other evidence in the record. He told this court unequivocally during the plea allocution that he was a citizen. He told the Probation Department not only that he was a citizen, but that he was born in Brooklyn on a specific date. He gave no indication that he believed he "derived" his citizenship through his mother.^[FN3]

Under all the circumstances, I find that defendant has failed to allege a ground constituting a legal basis for the motion and has failed to allege sufficient facts to support the legal ground asserted. C.P.L. § § 440.30 (4) (a), (b). Defendant has failed to establish that under the facts presented, counsel would have had any reason to question defendant's belief that he was a citizen. Padilla requires an attorney to counsel a "noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences," 130 S. Ct. at 1483 (emphasis added), and does not require an attorney to counsel a client professing to be a citizen of immigration consequences. Therefore, counsel's performance was not ineffective, even if he did not advise defendant about immigration consequences.

Defendant's motion must also be denied based on the second prong of the Strickland test. Under all the circumstances, defendant has failed to show that it would have been rational for him to have rejected the plea bargain. Defendant faced up to 9 years in state prison for a conviction of criminal sale of a controlled substance in the third degree, P.L. § 70.70 (2) (a) (i), and he still would have faced deportation. Yet based on his plea bargain, he received a sentence of only 6 months in jail. It would not have been a rational decision under the circumstances for [*4]defendant to have rejected the plea bargain, particularly given the overwhelming evidence of guilt. Defendant was observed selling two twists of cocaine to an undercover police officer in exchange for pre-recorded buy money. He was also observed throwing 12 more twists of cocaine to the ground, and the pre-recorded buy money was recovered from his pocket.

Therefore, even if defendant established the first prong of the Strickland test, he has not established the second prong — that the outcome would have been different if he had been warned of immigration consequences. In light of the overwhelming evidence against him, he would have faced certain deportation following a conviction after trial, as well as the risk of a lengthy state prison sentence, and it would not have been a rational decision to reject the plea. See Andrews, 2011 WL 1827891 at *5.

The motion is denied.

Dated: June 22, 2011_______________________________

J.S.C.