People v Bedward (2011 NY Slip Op 51936(U))

People v Bedward

2011 NY Slip Op 51936(U) [33 Misc 3d 1215(A)]

Decided on October 27, 2011

City Court Of Mount Vernon

Seiden, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

The defendant entered a plea of guilty to the charge of Petit Larceny (P.L. § 155.25) and was sentenced on May 29, 2008 to three years probation and a permanent order of protection directing the defendant to stay away from the complainant. Defendant now moves to vacate the judgment pursuant to C.P.L. § 440.10. The defendant has not appealed from the judgment. The People oppose the motion.On this motion, the defendant contends that his former attorney misadvised him regarding the immigration consequences of his guilty plea in this case. Specifically, the defendant affirms that although his attorney was well aware that he was an alien there was no discussion regarding defendant's immigration status by his attorney during the plea proceedings. Defendant further contends that his attorney advised him to plead guilty since he would not face any other consequences besides the time served and the suspension of his license.

In opposition, the People assert that defendant's contention that his attorney did not inform him of the deportation consequences of entering a guilty plea is not credible. Moreover, the People also contend that defendant's plea of guilty is not a situation where the law is succinct and straightforward requiring specific advice as to deportation consequences. As such, it is the People's contention that all that defendant's attorney had required was a general caution of a possibility of deportation which was satisfied by the Misdemeanor Conviction Waiver of Rights form which defendant executed prior to entering his plea of guilty. Paragraph 14 of the Misdemeanor Conviction Waiver of Rights form states "I understand that it I am not a citizen of the United States, this plea [*2]may result in my deportation and exclusion from the United States."

Pursuant to C.P.L. § 440.30(4) the court may, upon considering the merits of a motion to vacate a conviction, deny it without a hearing if the motion is based upon the essential facts without sworn allegations substantiating or tending to substantiate them, or an allegation of facts 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 probability that such allegation is true. See C.P.L. § 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 C.P.L. § 440.30(4)(b),(d)(i),(ii). Here, the defendant provided neither an affidavit from his attorney nor explained his efforts to obtain one. Since defendant's attorney is the only individual from whom evidence substantiating defendant's claim can be adduced, and no affidavit from his attorney has been provided in support of defendant's motion, defendant has failed to meet his burden of establishing that his counsel's performance was ineffective.

Assuming arguendo that defendant satisfied his burden of asserting sufficient factual allegations, which he did not, his ineffective assistance of counsel claim is nevertheless without merit. To prevail on an ineffective assistance of counsel claim, a defendant must be able to show both that the counsel's performance fell below an objective standard of reasonableness and prejudiced the defendant. Strickland v. Washington, 466 U.S. 668 (1984). The performance and prejudice prongs of Strickland may be addressed in either order. People v. Rosales, 24 Misc 3d 1236A (Sup. Ct. Bronx Cty. 2009). In the context of a plea, the prejudice prong "focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process. Hill v. Lockhart, 474 U.S. 52 (1985). Defendant must be able to show that there is a reasonable probability that, but for counsel's error, he would have pleaded not guilty and would have insisted on proceeding to trial. Id.

In order to establish that the defendant would have insisted on going to trial, an affidavit providing sufficient factual allegations must be submitted to the court. People v. McDonald, 1 NY3d 109 (2003). Some of the factors that must be set out in such an affidavit are the strength of the prosecutor's case, the availability of a defense, the likelihood of success at trial, a comparison of the sentence promised with the potential incarceration the defendant faced if convicted after trial, counsel's advice as to the reasons to accept the plea bargain, and a reason why the defendant admitted committing the act. Id. An unsubstantiated claim that the defendant would have insisted on proceeding to trial is insufficient. People v. Melio, 304 AD2d 247 (2nd Dept. 2003); cf. People v. McKenzie, 4 A.D3d 437 (2nd Dept. 2004). There must be specific factual allegations supporting such a claim, or an explanation for defendant's inability to provide the same. McDonald at 115.

In the case at bar, the Court finds that the defendant's allegations do not set forth sufficient factual allegations to demonstrate that there is a reasonable probability that, but for counsel's error, he would have pleaded not guilty and would have insisted on proceeding to trial. Defendant merely asserts in a conclusory statement that if he had known that he could be removed from the United States as a result of the guilty [*3]plea he would have gone to trial rather than plead guilty. Defendant fails to assert any specific factual allegations regarding the strength of the People's case, any specific defense that was available to the defendant, any reason why he admitted committing the act or any of the other factors that would support his conclusory contention.^[FN1]

Based upon the foregoing, defendant has not provided sufficient allegations which would entitle him to vacate the judgment under C.P.L. § 440.10. The defendant's motion to vacate the judgment is therefore denied.