On March 3, 2000, judgment was entered against the defendant in Supreme Court, Bronx County (Ruiz, J.), convicting him upon his plea of guilty to failure to disclose the origin of a recording in the first degree (PL 275.40, a class E felony). On April 18, 2000, defendant was sentenced to a five-year term of probation.

Defendant, a B1 non-immigrant with authorization to remain in the United States for a temporary period not to exceed one year, was admitted to the United States at New York, New York, on or about July 12, 1997. On April 25, 2011, the United States Department of Homeland Security, Immigration and Customs Enforcement ("ICE"), issued defendant a Notice to Appear ("NTA") for removal proceedings. The NTA alleges defendant is subject to removal from the United States pursuant to section 237 (a)(1)(B) of the Immigration and Nationality Act for having remained in the United States beyond a one-year period without authorization from ICE.

Defendant now moves the court to vacate his felony conviction pursuant to CPL 440.10(1)(h) on the ground that his plea was not knowingly and voluntarily entered in that trial counsel neglected to adequately advise him of the immigration consequences of his guilty plea. In the alternative, defendant requests a hearing to determine whether said judgment should be vacated.

On June 23rd, 1999, defendant was charged with criminal possession of a forged instrument in the second degree (PL 170.25, a class D felony), 123 counts of criminal possession of forgery devices (PL 170.40[2], a class D felony), and two counts of failure to disclose the origin of a recording in the first degree (PL 275.40). As noted above, defendant ultimately pled guilty to one count of failure to disclose the origin of a recording in the first degree, a class E felony, in exchange for a promised sentence of five years probation.

In motion papers dated March 25, 2011, defendant moves this court to vacate his judgment of conviction pursuant to CPL 440.10 on the basis of Padilla v Kentucky (130 S Ct 1473 [2010]), which imposed an affirmative duty on defense counsel to provide accurate advice concerning the potential immigration consequences to a non-citizen defendant. Defendant claims he received ineffective assistance of counsel because his attorney, Brian Baker, misadvised him as to the possible immigration consequences of his plea by informing defendant that pleading guilty to failure to disclose the origin of a recording would not result in deportation. He further asserts that had he been aware his guilty plea would have subjected him to deportation, he would have opted for trial. Defendant also claims that the judgment against him should be vacated on ineffective assistance of counsel because his attorney provided erroneous advice regarding possible defenses to the crimes charged.

The People, in opposing defendant's motion, argue that defendant has failed to raise a colorable issue of fact and thus has not met his burden of coming forward with sworn allegations sufficient to substantiate the essential facts set forth in his moving papers (see CPL 440.30[4][b], [d][i], [ii]). They note that defendant's failure to present an affidavit from his attorney demonstrates that defendant tacitly concedes he made no attempt to provide substantiation for his claim. While the People also argue that Padilla does not retroactively apply to defendant's guilty plea, they point out that the immigration-related consequences he now faces are the result of having remained in the United States past the expiration of his visa, not his 2000 conviction. Thus, the People contend that even if defendant were indeed oblivious to the possibility that his plea could run him afoul of federal immigration authorities, there can be no prejudice as a result of counsel's alleged misadvise because defendant's present immigration problems are unrelated to the challenged conviction.

Pursuant CPL 440.30 (4), the court may, upon considering the merits of the motion, deny it without a hearing if the motion is based upon essential facts without sworn allegations substantiating or tending to substantiate them (see CPL 440.30 [4][b]), or an allegation of fact essential to support the motion is either contradicted by a court record or other official document, or made solely by the defendant unsupported by any other affidavit or evidence, and there is no reasonable possibility that such allegation is true (see CPL 440.30 [4][d][i], [ii]). A judgment of conviction is presumed valid, and a defendant moving to vacate his judgment has the burden of coming forward with sworn allegations sufficient to create an issue of fact (see CPL 440.30 [4][b], [d][i], [ii]).

Here, defendant neither provided an affidavit from his attorney nor explained his efforts to obtain one (see CPL 440.30[4][b]; see also People v Morales, 58 NY2d 1008 [1983], citing People v Scott, 10 NY2d 380 [1961] [failure to supply attorney's affirmation warranted summary [*3]denial of motion collaterally attacking conviction based on attorney's alleged conduct]). Perhaps such failure is explained by the inclusion of an affirmation from Mr. Baker in the People's opposition papers. Indeed, Mr. Baker, a criminal defense attorney for more than twenty years who continues to maintain an active defense practice in Bronx County, is the only person from whom evidence substantiating defendant's claim can be adduced. In his affirmation, Mr. Baker unequivocally states defendant's allegation that he misadvised defendant as to possible immigration consequences is "false" (People's Exhibit 4, ¶ 4). While unable to recall specific discussions he had with defendant, he also states:

it has been and still is my practice to advise non-citizens of possible deportation ramifications to their plea. I consistently inform any client who desires to plead guilty to a crime — particularly if that crime is a felony — of possible immigration consequences, including whether pleading guilty or being convicted after trial carries a risk of deportation (People's Exhibit 4, ¶ 5).

As such, "there is no reasonable possibility that the allegation is true" (CPL 440.30[4][d][ii]). Accordingly, defendant's claim, without further evidence, is insufficient to meet his burden of proving that counsel's performance was ineffective.

Assuming defendant satisfied his burden of asserting sufficient factual allegations, which he did not, his ineffective assistance of counsel claim is nevertheless without merit. According to federal law, a claim of ineffective assistance of counsel is evaluated under the two-part test set forth in (Strickland v Washington, 466 US 668 [1984]). To prevail, a defendant must (1) show that his counsel's performance fell below an "objective standard of reasonableness," judged by "prevailing professional norms" (the performance prong), and (2) "affirmatively prove prejudice" by demonstrating that, but for counsel's unprofessional errors, the result of the proceeding would have been different (the prejudice prong) (Strickland, 466 US at 687-88).

To demonstrate that counsel's performance was deficient, a defendant must show that "in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance" (Pavel v Hollins, 261 F3d 210, 216 [2d Cir 2001]). This standard is "rigorous" (Lindstadt v Keane, 239 F3d 191, 199 [2d Cir 2001]), and "highly demanding" (Kimmel v Morrison, 477 US 365, 382 [1986]). To demonstrate prejudice, a defendant must show there is a reasonable probability that the ineffective performance rendered the proceeding fundamentally unfair or produced an unreliable result (Lockhart v Fretwell, 506 US 364, 370-72 [1993]).

According to New York law, however, the defendant is not required to "fully satisfy the prejudice test of Strickland" (People v Caban, 5 NY3d 143, 152 [2005], quoting People v Stultz, 2 NY3d 277, 284 [2004]). Rather, the only "question is whether the attorney's conduct constituted egregious and prejudicial error such that defendant did not receive a fair trial" (People v Benevento, 91 NY2d 708, 713 [1998]). Indeed, a defendant need not prove that the outcome of the case would have been different but for such errors, rather only that he was deprived of a fair trial overall (Caban, 5 NY3d at 155-56). However, like the performance prong in Strickland, New York law provides that "a defendant must show that his attorney's performance fell below an objective standard of reasonableness" (Rosario v Ercole, 601 F3d 118, 124 [2d Cir 2010]). Under Article I, §6, of the New York State Constitution, success of an [*4]ineffective assistance of counsel claim rests on whether "the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation" (People v Henry, 95 NY3d 143, 152 [2005], quoting People v Baldi, 54 NY2d 137, 164-67 [1981]).

Initially, it may appear as if the New York standard neglects a requirement of the federal standard. But rather, the former by its nature encompasses the latter (see Rosario, 601 F3d 118). Benevento explained that in New York, " prejudice' is examined more generally in the context of whether defendant received meaningful representation" (Benevento, 91 NY2d at 713). Consistent with this notion, it is irrelevant whether the attorney's advice had a particular impact on the outcome of the case (see Caban, 5 NY3d at 156). The federal standard, however, accounts for the advice's effect on "the result of the proceedings" (Strickland, 466 US at 695). Thus, this is only an apparent contradiction: "[f]undamental fairness analysis by its nature must always encompass prejudice" such that under the New York standard the "prejudice" prong in Strickland is effectively redundant (Rosario, 601 F3d at 125).

In the context of a guilty plea, a defendant receives meaningful representation when he obtains "an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel" (People v Ford, 86 NY2d 397, 404 [1995], citing People v Boodho, 191 AD2d 448, 449 [2d Dept 1993]). And once a defendant acquires a favorable plea bargain, "it cannot be concluded that defendant was denied effective assistance of counsel" (People v Black, 247 AD2d 238 [1st Dept 1998], quoting People v Garcia, 235 AD2d 268 [1st Dept 1997]).

Here, defendant's motion is based on the assertion that defense counsel's failure to advise him of the potential immigration consequences associated with pleading guilty as well as counsel's failure to advise him of possible defenses constitute ineffective assistance. As such, he must establish that counsel's allegedly deficient conduct prejudiced him. To do so in a plea bargain context, "the defendant must show that there is reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial" (Premo v Moore, 131 S Ct 733, 737 [2011], quoting Hill v Lockhart, 474 US 52, 59 [1985]). That is, "to obtain relief[,] a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances" (Padilla v Kentucky, 130 S Ct 1473, 1485 [2010]).

It is worth noting that since the performance and prejudice elements set forth in Strickland may be addressed in either order, "a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies"(Strickland, 466 US at 688). "[I]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed" (Strickland at 697). Then, only after determining that the defendant has been prejudiced must the court consider counsel's performance (id).

Padilla v Kentucky

The Supreme Court in Padilla imposed an affirmative duty on defense counsel to provide accurate advice concerning the potential immigration consequences to a non-citizen defendant (Padilla, 130 S Ct at 1473). Padilla, a lawful permanent resident in the United States for over 40 [*5]years, pled guilty to drug-distribution charges in Kentucky and faced deportation as a consequence of his conviction (id). Counsel had assured Padilla that the plea would not affect his immigration status because "he had been in the country so long" (Padilla at 1478). Consequently, Padilla claimed ineffective assistance of counsel. The Court concluded this was "not a hard case in which to find deficiency" for counsel could have easily "determined that the plea would make [Padilla] eligible for deportation simply from reading the text of the statute" (id).

Padilla provided guidance as to the scope and nature of legal advice that courts should require of practitioners in the immigration context. The Court concluded that, at least where the "terms of the relevant immigration statute are succinct . . . and explicit in defining the removal consequence[s] for . . . conviction," constitutionally competent counsel must advise a defendant that his conviction makes him subject to mandatory deportation (Padilla at 1477).

i. Prejudice

Defendant has failed to establish that he has suffered immigration-related consequences as a result of the instant 2000 conviction. Indeed, according to the United States Department of Justice, Immigration and Customs Enforcement, defendant is subject to deportation as a result of having remained in the Unites States past the expiration of his visa, not his felony conviction (People's Exhibit 3). Thus, even if defendant were indeed ignorant to the possibility that his plea could run him afoul of federal immigration authorities, there can be no prejudice as a result of counsel's alleged misadvice because defendant's present immigration problems are unrelated to the challenged conviction.

Yet, defendant was not oblivious to such a risk. Defendant's claim that he would not have pled guilty "[h]ad [he] known that a guilty plea . . . would adversely affect [his] immigration" status (Defendant's Affidavit, ¶ 12) is unsupported by the record. The minutes of his plea allocution clearly reflect that, regardless of any discussions he had with counsel outside the courtroom (Defendant's Affidavit, ¶ 9), defendant was advised by the court that his "plea of guilty . . . may result in [] deportation, exclusion from the United States, or denial of citizenship." (People's Exhibit 2). When asked by the court, "Do you understand that sir?" defendant replied, "Yes." (People's Exhibit 2). Where defendant knew of the potential consequences of his plea but chose to plead guilty nonetheless, any prejudice that might have arisen from his attorney's alleged misadvice was vitiated. Thus, defendant has failed to establish prejudice under Strickland (see US v Bhindar, 2010 WL 2633858 at *6 [SDNY 2010] [counsel's assistance was effective, where court asked defendant if he understood he would be deported after jail sentence and defendant confirmed that he understood)].

Additionally, the People's evidence strongly suggests that defendant would not have elected to proceed to trial regardless of any advice he received regarding the immigration consequences of his guilty plea (see Boakye v US, 2010 WL 1645055 at *5-6 [SDNY 2010]). Defendant was observed "loading boxes from inside [a house] into his car" (People's Exhibit 1). While defendant now contends, eleven years after his plea, that he did not know the house and the boxes contained illegal items, (Defendant's Affidavit, ¶ 4), such a defense is doubtful given that the house contained 123 interconnected VCRs, distribution boxes, 1003 videotapes "in various stages of packaging," and other paraphernalia associated with the production of [*6]counterfeit recordings (People's Exhibit 1). Given the weight of such evidence, defendant must have known the People's case was strong and that it was highly probable he would be convicted — thus incarcerated and subject to deportation — if he proceeded to trial. Consequently, defendant's claim lacks credibility.

Furthermore, it is particularly incredible to believe the defendant would have proceeded to trial given the advantageous plea bargain that Mr. Baker obtained on his behalf. In addition to being charged with failure to disclose the origin of a recording in the first degree (PL 275.40), a class E felony, defendant also faced 123 counts of criminal possession of forgery devices (PL 170.40[2]) and criminal possession of a forged instrument in the second degree (PL 170.25), both class D felonies (People's Exhibit 1). If convicted, defendant could have been sentenced to an indeterminate term of incarceration with a maximum term of between three and four years for failure to disclose the origin of a recording, and concurrent terms of between three and seven years for criminal possession of forgery devices and a forged instrument. Successfully extracting a promised sentence of five years probation, defendant eluded incarceration. Such a beneficial plea agreement strongly suggests that defendant would not have opted for a trial, regardless of the advice he received from counsel as to possible immigration-related consequences of pleading guilty (see Boakye>/I<, 2010 WL 1645055 at *6 [defendant received "substantial benefit" in sentence reduction from range of 151 to 188 months, down to 120 to 135 months, despite immigration consequences]). Clearly, defendant failed to establish that he was prejudiced as a result of counsel's alleged misadvice.

ii. Performance >PStrickland, 466 US at 687-88; see Benevento, 91 NY2d 708 [1998]). Counsel will be deemed to have provided constitutionally effective representation when the defendant receives an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel (see People v Ford, 86 NY2d 397, 405 [1995]). Here, Mr. Baker's procurement of an entirely non-incarceratory plea agreement assuredly satisfies this standard.

Moreover, as noted above, Mr. Baker's affirmation clearly and unequivocally controverts defendant's claim. Consequently, defendant also fails to establish by a preponderance of the evidence that Mr. Baker misadvised him as to possible immigration consequences of his guilty plea (see CPL 440.30[6]) or that he provided "erroneous advice regarding the possible defenses to the crimes charged" (Defendant's Motion, pp.14). In the absence of any other evidence to substantiate it, defendant fails to sustain his burden of establishing that counsel's performance was ineffective.

Defendant also claims ineffective assistance of counsel on grounds that his attorney failed to explore "possible defenses based on the fact that [defendant] was only in innocent possession of the forgery devises and . . . lacked the necessary knowledge that the videotapes were forged" (Defendant's Motion p. 13). During his allocution, however, defendant admitted possessing over one hundred counterfeit videotapes intending to sell them (People's Exhibit 2, pp. 5-6). He further claims to have not understood the questions posed to him by the court and required an interpreter (Defendant's Affidavit, ¶ 10). The record, however, belies such a claim. In fact, at no [*7]time did he indicate that he did not understand English nor did he ever request the assistance of an interpreter. Moreover, at the time of his plea, he had been in the United States for nearly three years (see People's Exhibit 3) and appeared to have no difficulty admitting to his conduct. It strikes this court as odd that in light of such a detailed admission of knowledge and intention, defendant would now claim counsel neglected to pursue an "innocent possession" defense. If anything, it reflects Mr. Baker's remarkable effectiveness in obtaining such a favorable disposition. Consequently, defendant's claim is unsubstantiated; but for counsel's alleged failure to explore possible defenses, the outcome of the case would have been no different.

iii. Retroactivity

Defendant further contends that this court's decision should retroactively apply to his March 2000 conviction. Although a debate persists as to whether Padilla should retroactively apply (see e.g. People v Obonaga, No., 07-CR-402 (JS), 2010 WL 2629748 (EDNY) (retroactive effect); Gacko v United States, No. 09-CV-4938 (ARR), 2010 WL 2076020 (EDNY 2010) (no retroactive effect), this court, having determined that defendant failed to establish counsel was ineffective, need not consider this issue.

For the reasons stated above, this court finds that the defendant received effective assistance at all stages of the proceedings (see People v Ford, 86 NY2d 397, 404 [1995]; see also Strickland v Washington, 466 US 668 [1984]. Defendant's motion to vacate his judgment of conviction pursuant to CPL 440.10(1)(h) is therefore denied in all respects.

This constitutes the decision and order of the court.

Dated:August 1, 2011

________________________________Richard Lee Price, J.S.C.