People v Caceras (2013 NY Slip Op 51216(U))

People v Caceras

2013 NY Slip Op 51216(U) [40 Misc 3d 1217(A)]

Decided on July 12, 2013

Supreme Court, New York County

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This opinion is uncorrected and will not be published in the printed Official Reports.

Defendant Juan Caceras, convicted by a plea of guilty on January 25, 2001 of attempted criminal possession of a controlled substance in the third degree (PL §§110/220.16[1]), before another justice of this court ^[FN1] and sentenced on March 14, 2001 to five years' probation, now moves to vacate the judgment of conviction pursuant to Criminal Procedure Law §440.10(1)(h), primarily on grounds of violation of his federal and state constitutional rights to due process (US Const., amends. V, XIV; NY Const., art. I, §6) and the effective assistance of counsel (US Const, amend. VI; NY Const., art. I, §6) at the time of his plea. In essence, he argues that his failure to have been informed at the time of his plea of its deportation consequences entitles him to relief, either under Padilla v. Kentucky, 559 US 356, 130 SCt 1473 (2010), or because his plea was not knowing, intelligent and voluntary due to such failure. The People have opposed the motion. [*2]For the reasons that follow, defendant's CPL §440.10 motion is summarily denied.

I.FACTUAL AND PROCEDURAL BACKGROUND

On August 17, 2000, at the intersection of 8th Avenue and West 21st Street in Manhattan, defendant was observed by a New York Police Department (NYPD) detective while he was sitting in the passenger seat of a vehicle alongside his co-defendant Franklin Torres, who was in the driver's seat. The detective then observed the separately apprehended and charged Michael Waddy entering the vehicle and exiting a short time thereafter with two tins which he placed in his shirt pocket and which were later found to contain cocaine.

In a separate incident, another NYPD detective observed Tucker Chauncey, also separately apprehended and charged, entering the vehicle, and, upon doing so, handing co-defendant Torres an unspecified sum of United States currency in exchange for one bag containing what was later determined to be cocaine. The detective then observed Chauncey placing the bag of cocaine into another bag he was holding and exiting the vehicle.

After apprehending Waddy and Chauncey, the police then arrested defendant and Torres, recovering 24 tins containing cocaine, matching the tins recovered from Waddy's right shirt pocket, and eight bags containing cocaine with an aggregate weight of more than two ounces, matching the bag recovered from Chauncey, from inside the vehicle where defendant and co-defendant Torres had been sitting. In addition, $770 in United States currency was recovered from defendant.

By indictment filed September 7, 2000, defendant was charged with two counts of criminal sale of a controlled substance in the third degree (PL §220.39[1]) and two counts of criminal possession of a controlled substance in the third degree (PL §220.16[1], [12]), all class B felony offenses.

As stated above, on January 25, 2001, defendant pled guilty to attempted criminal possession of a controlled substance in the third degree (PL §§110/220.16[1]), a class C felony offense, in full satisfaction of the indictment and received the promised sentence of five years' probation on March 14, 2001. (Tr. of proceedings dated March 14, 2001, at 3). Defendant's time to appeal the judgment of his conviction expired on April 13, 2001 (CPL §460.10[1][a]), without any appeal having been taken.

On February 25, 2013, defendant filed the instant motion (Notice of Motion and Affirmation of Alexander Arandia, Esq., dated Feb. 5, 2013 [Def. Mot.]), annexed to which is defendant's own affidavit and exhibits. (Affidavit of Juan Caceras, sworn Nov. 29, 2012). In that original submission, defendant, citing Padilla v. Kentucky, supra, argued that he had received ineffective assistance from his plea counsel, in that his counsel failed to advise him of the deportation consequences of his plea.

On May 17, 2013, the People filed their response in opposition to the motion, arguing principally that under Chaidez v. United States, 568 US —, 133 SCt 1103 (Feb. 20, 2013), a decision issued subsequent to the defendant's preparation of his motion papers, Padilla is not retroactively applicable on collateral review to cases such as this one, which were final on direct [*3]review at the time Padilla was issued.^[FN2] (Affirmation and Memorandum of Law of Matthew C. Reinhardt, Esq., dated May 17, 2013 [Peo. Resp.]).

On this court's invitation to respond to the People's Chaidez argument, on June 19, 2013, defense counsel filed an affirmation in reply (Reply Affirmation and Memorandum of Law of Alexander Arandia, Esq., dated June 16, 2013 [Reply]), along with accompanying exhibits, including a supplemental affidavit from defendant. In his reply, defendant appears to withdraw from, if not wholly abandon, his Padilla claim in light of Chaidez, and to recast his right to counsel claim as one sounding in due process, urging that his lack of awareness of the immigration consequences of his plea rendered his plea unknowing, unintelligent and involuntary. In addition, defendant's reply appends a claim of actual innocence of the crime, as well as one urging that his guilty plea was procured by fraud and duress (CPL §440.10[1][b]) and by improper and prejudicial conduct (CPL §440.10[1][f]). On June 28, 2013, the People filed a sur-reply. (Affirmation and Memorandum of Law of Matthew C. Reinhardt, Esq., dated June 28, 2013).

II.LEGAL STANDARDS

Criminal Procedure Law §440.10 provides that at any time after the entry of a judgment, the court in which it was entered may, upon motion of the defendant, vacate such judgment on the grounds that, inter alia, "[t]he judgment was obtained in violation of a right of the defendant under the constitution of this state or of the United States." (CPL §440.10[1][h]). A CPL §440.10 motion is not a vehicle for a second appeal, however. (People v. Cooks, 67 NY2d 100, 103 [1986]). Rather, it is designed to inform a court of facts not appearing on the record and unknown at the time of judgment that would, as a matter of law, undermine the judgment. (People v. Harris, 109 AD2d 351 [2d Dept.], lv. denied, 66 NY2d 919 [1985]).

In determining whether a CPL §440.10 motion is meritorious, the court must grant the motion without conducting a hearing, and vacate the judgment and set aside the sentence, if the [*4]moving papers allege a ground constituting a legal basis for the motion (CPL §440.30[3][a]), which ground, if factually based, is supported by sworn allegations of fact supporting the defendant's claims (CPL §440.30[3][b]) which are either conceded by the People to be true or are conclusively substantiated by unquestionable documentary proof (CPL §440.30[3][c]).

The court may, nonetheless, upon reaching the merits, still deny the motion without a hearing, if the moving papers, inter alia, fail to allege a ground constituting a legal basis for the motion (CPL §440.30[4][a]) or fail to allege sufficient facts to support the legal ground asserted (CPL §440.30[4][b]; People v. Session, 34 NY2d 254, 255-256 [1974]). The motion may also be summarily denied if the essential factual allegations are either contradicted by the court record, or are made solely by defendant and unsupported by any other evidence, and under the circumstances, there is no reasonable possibility that they are true. (CPL §440.30[4][d]). Only in the event that the court does not determine the motion pursuant to the other provisions of CPL §440.30 must a hearing be conducted. (CPL §440.30[5]).

Because a guilty plea operates as a waiver of important

rights, it is valid only if done voluntarily, knowingly,

and intelligently, "with sufficient awareness of the

relevant circumstances and likely consequences." (Brady v.

United States, 397 US 742, 748 [1970]; see North Carolina v. Alford, 400 US 25, 31 [1970]["The standard (for determining the validity of guilty pleas) was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant."]). "The voluntariness of [a] plea can be determined only by considering all of the relevant circumstances surrounding it." (Brady v. United States, supra, 397 US at 749).

In considering which consequences of a guilty plea are among those of which a court must advise a defendant in order for the plea to be knowing, intelligent and voluntary, federal courts have drawn a distinction between those consequences which are "direct," i.e., consequences of which a defendant must be advised, and those which are "collateral," i.e., those of which a defendant need not be advised. (See Brady v. United States, supra, at 397 US at 755; see also Fructman v. Kenton, 531 F2d 946, 948-949 [9th Cir.], cert. denied, 429 US 895 [1976][discussing direct-collateral distinction in determining that deportation is not collateral consequence of guilty plea][citing United States v. Parrino, 212 F2d 919 (2d Cir.), cert. denied, 348 US 840 (1954)][other internal citations omitted]).

With respect to state constitutional due process

requirements in the context of a guilty plea, the Court of

Appeals has explained:

The Court of Appeals recently reaffirmed its longstanding jurisprudence regarding the distinction in its treatment of direct and collateral consequences of a plea, stating:

Both the United States and New York State Constitutions guarantee a criminal defendant that the right to counsel carries with it the right to receive effective assistance from that counsel. (US Const., amend. VI; NY Const., art. I, §6). "It is well established that these constitutional rights are violated if a defendant's counsel fails to meet a minimum standard of effectiveness, and defendant suffers prejudice from that failure." (People v. Turner, 5 NY3d 476, 479-80 [2005][citing Strickland v. Washington, 466 US 668 (1984), and People v. Baldi, 54 NY2d 127 (1981)]; see also People v. Benevento, 91 NY2d 708, 713 [1998]["The two-part Strickland test requires a showing that counsel's performance was deficient and that the deficiency in performance prejudiced defendant . . . ." (internal citation and quotation marks omitted)]).

"[C]riminal defendants require effective counsel during plea negotiations. Anything less . . . might deny a defendant effective representation by counsel at the only stage when legal aid and advice would help him." (Missouri v. Frye, - US -, 132 SCt 1399, 1407-1408 [Mar. 21, [*6]2012][internal quotation marks and citations omitted]). Indeed, "the decision to plead guilty, and thereby forfeit many of the rights guaranteed by the United States and New York Constitutions is ordinarily the most important single decision in any criminal case'" (People v. Picca, 97 AD3d 170, 177 [2d Dept. 2012] [citations omitted]). Thus, a defendant is entitled to effective assistance of counsel "[b]efore deciding whether to plead guilty." (Padilla v. Kentucky, supra, 559 US at __, 130 SCt at 1480).

In order to establish a constitutional violation under the federal Sixth Amendment standard, a defendant must satisfy a two-pronged test, demonstrating first that "counsel's representation fell below an objective standard of reasonableness" (Strickland v. Washington, supra, 466 US at 686), and second, 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; People v. Turner, supra, 5 NY3d at 480).

The Supreme Court has explained that:

a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct. . . . [T]he court should keep in mind that counsel's function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.

(Strickland v. Washington, supra, 466 US at 690 [emphasis added]).In determining whether a defense counsel's representation of a defendant at the time of a plea met an objective standard of reasonableness, "courts must take into account all the information counsel knew or should have known at the time of the defendant's plea." (Roe v. Flores-Ortega, 528 US 470, 471 [2000]).

In reviewing a claim that defense counsel ineffectively failed to advise the defendant of the immigration consequences of a plea, the inquiry under the "objective standard of reasonableness" prong of the Strickland standard "is necessarily linked to the practice and expectations of the legal community: The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.'" (Padilla v. Kentucky, supra, 559 US at ___, 130 SCt at 1482 [quoting Strickland v. Washington, supra, 466 US at 694]). In its Padilla decision issued in 2010, the Supreme Court observed that "[f]or at least the past 15 years, professional norms have generally imposed an obligation on counsel to provide advice on the deportation consequences of a client's plea." (Padilla v. Kentucky, supra, 559 US at ___, 130 SCt at 1485). Where well-settled provisions of immigration law readily dictate the result [*7]of a guilty plea and the "deportation consequence is truly clear, . . . the duty to give correct advice is equally clear." (Id. at 1483). On the other hand, the Court acknowledged, in those "situations in which the deportation consequences of a particular plea are unclear or uncertain . . . [t]he duty of the private practitioner is more limited." (Id.). In such cases, "a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences." (Id.). "Lack of clarity in the law . . . does not obviate the need for counsel to say something about the possibility of deportation," however. (Id. at n.10).

Furthermore, to satisfy Strickland's prejudice requirement in the context of a claim of ineffective assistance in connection with a guilty plea, the defendant "must 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, 474 US 52, 59 [1985]; People v. McDonald, 1 NY3d 109, 115 [2003]). The Supreme Court has defined "reasonable probability" as "a probability sufficient to undermine confidence in the outcome." (Strickland v. Washington, supra, 466 US at 694). "[A] defendant need not show that counsel's deficient conduct more likely than not altered the outcome in the case," however. (Id. at 693).

Further, the "petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances." (Padilla v. Kentucky, supra, 559 US at __, 130 SCt at 1485 [citing Roe v. Flores-Ortega, supra, 528 US at 480]). Thus, defendant must demonstrate that, considering the totality of the circumstances at the time of the plea, "there is reason to think either (1) that a rational defendant would want to [reject the plea bargain and proceed to trial] . . ., or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in [rejecting the plea bargain and proceeding to trial]." (Roe v. Flores-Ortega, supra, 528 US at 480 [applying the two-pronged standard in the context of advice to a defendant as to whether or not to appeal a conviction]).

In applying the constitutional standard for prejudice under Padilla, a court need "not determine whether a decision to reject a plea of guilty was the best choice, but only whether it is a rational one." (People v. Picca, supra, 97 AD3d at 185). Moreover, the defendant need not even demonstrate a likelihood of success at trial. (See United States v. Orocio, 645 F3d 630, 643 [3d Cir. 2011], abrogated on other grounds by Chaidez v. United States, supra ["The Supreme Court . . . requires only that a defendant have rationally gone to trial in the first place, and it has never required an affirmative demonstration of likely acquittal at such a trial as the sine qua non of prejudice" (citing Hill v. Lockhart, supra, 474 US at 59)]). Rather, all that a defendant need demonstrate is that "a decision to reject the plea offer and take a chance, however slim, of being acquitted after trial would have been rational." (People v. Picca, supra, 97 AD3d at 184-185 [citing United States v. Orocio, supra, 645 F3d at 643-646]). In making its determination, a court must be mindful that "[t]he rationality standard set by the United States Supreme Court in Padilla does not allow the courts to substitute their judgment for that of the defendant." (People v. Picca, supra, 97 AD3d at 185). Further, whether the court's determination is made through application of the objective "rational defendant" standard or the subjective standard of reasonably [*8]demonstrated" interest, "courts must take into account all the information counsel knew or should have known" at the time of the defendant's plea. (Roe v. Flores-Ortega, supra, 528 US at 480).

Because removal from the United States "can be the equivalent of banishment or exile" (Delgadillo v. Carmichael, 332 US 388, 391 [1947]), deportation is "a particularly severe penalty." (Padilla v. Kentucky, 559 US at __, 130 SCt at 1481 [internal quotation marks omitted]). Indeed, especially for an undocumented immigrant who has resided in this country for a substantial period of time, the "stakes are . . . high and momentous . . . ." (Delgadillo v. Carmichael, supra, 332 US at 391). Therefore, because "[p]reserving the client's right to remain in the United States may be more important to the client than any potential jail sentence" (Padilla v. Kentucky, supra, 559 US at __, 130 SCt at 1483 [quoting INS v. St. Cyr, supra, 533 US 289, 322 (2001)]), a thorough evaluation of the circumstances in which non-citizen criminal defendants find themselves at the time of the plea is essential to the prejudice analysis. (See People v. Picca, supra, 97 AD3d at 183-184 ["In light of the primary importance that aliens may place upon avoiding exile from this country, an evaluation of whether an individual in the defendant's position could rationally reject a plea offer and proceed to trial must take into account the particular circumstances informing the defendant's desire to remain in the United States. . . . If, for example, an alien has significant ties to his or her country of origin, or has only resided in the United States for a relatively brief period of time, or has no family here, a decision to proceed to trial in lieu of a favorable plea agreement may be irrational in the face of overwhelming evidence of guilt and a potentially lengthy prison sentence."]).

Article I, §6 of the New York State Constitution similarly guarantees a criminal defendant the effective assistance of counsel. This standard is flexible and "[s]o long as 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, the constitutional requirement will have been met . . . ." (People v. Baldi, supra, 54 NY2d at 147; see People v. Benevento, supra, 91 NY2d at 712 [a defendant is deemed to have received effective assistance where the totality of the record establishes that the defendant received meaningful representation]). An attorney is presumed to have provided "meaningful representation," and the burden of proving otherwise rests with the defendant. (People v. Hobot, 84 NY2d 1021, 1022 [1995]). The defendant has the burden to show that defense counsel's representation was characterized by an absence of strategic or other legitimate explanations. (People v. Flores, 84 NY2d 184, 188 [1994]; People v. Rivera, 71 NY2d 705, 709 [1988]). In the absence of such a showing, defense counsel's competence and exercise of professional judgment are presumed. (Id.; see People v. Hobot, supra, 84 NY2d at 1022).

"In the context of a guilty plea, a defendant has been afforded meaningful representation when he or she receives an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel. . . ." (People v. Ford, supra, 86 NY2d at 404 [internal citations omitted]). To establish a constitutional violation under the state standard, the defendant must demonstrate that "the alleged ineffective assistance had [an] impact on the plea bargaining process or the voluntariness of the plea." (People v. Dunn, 261 AD2d 940 [4th Dept.], lv. denied, [*9]94 NY2d 822 [1999]).

While the Baldi standard requires only an inquiry as to whether a defendant received "meaningful representation," this does not mean that prejudice is irrelevant under the New York standard. It is regarded "as a significant but not indispens[a]ble element in assessing meaningful representation." (People v. Stultz, 2 NY3d 277, 284 [2004]). Under the state standard, the "prejudice component focuses on the fairness of the process as a whole rather than its particular impact on the outcome of the case. . . .'" (People v. Feliciano, 17 NY3d 14, 20 [2011][quoting People v. Benevento, supra, 91 NY2d at 714]).

In order to obtain a hearing on a claim that, barring defense counsel's improper conduct, the defendant would have chosen to proceed to trial, it is not sufficient for the defendant to make conclusory allegations about ultimate facts. Rather, the defendant must proffer evidentiary facts in support of the claim. (CPL §§440.30[4][b], [5]; see People v. Session, supra, 34 NY2d at 255-256).

Moreover, "[d]efendant must show that the nonrecord facts sought to be established are material and would entitle him to relief." (People v. Satterfield, 66 NY2d 796, 799 [1985]). The Court of Appeals has instructed courts reviewing CPL §440.10 motions that in deciding whether to grant a hearing, "[t]he sufficiency of defendant's factual allegations . . . should be evaluated with reference to the face of the pleadings, the context of the motion and defendant's access to information." (People v. McDonald, supra, 1 NY3d at 115 [citing People v. Mendoza, 82 NY2d 415, 426 (1993)]).

In People v. McDonald, 296 AD2d 13 (3d Dept. 2002), aff'd, 1 NY2d 109 (2003), the Appellate Division, Third Department identified as factors to be considered on a claim of ineffective assistance plea counsel the strength of the prosecution's evidence, the availability of any defenses, the likelihood of a conviction were the defendant to proceed to trial, defense counsel's advice on the plea offer and a comparison of the promised sentence after a guilty plea with the potential exposure upon a guilty verdict (the McDonald legal factors). (People v. McDonald, supra, 296 AD2d at 20).

In addition to these factors generally applicable on a motion to vacate judgment of conviction by plea based upon ineffective assistance of counsel, the Appellate Division, Second Department in Picca has made clear that where the motion involves a claim under Padilla v. Kentucky, the motion court must consider factors such as the defendant's social circumstances at the time of the plea, including the contemporaneous presence of family members in the United States contrasted with the extant family in defendant's country of origin; defendant's employment history in both countries; any steps defendant had taken prior to the guilty plea to remain legally in this country; defendant's frequency of travel to his or her country of origin; any statements by the defendant to the court, to the Department of Probation or to plea counsel reflecting defendant's contemporaneous connections to both countries; ultimate residential plans; and any other facts or circumstances evincing the primacy of the defendant's desire to remain in the United States (the Picca social factors). (People v. Picca, supra, 97 AD3d at 183-184; see United [*10]States v. Couto, 311 F3d 179, 188 n.9 [2nd Cir. 2002] [on learning of deportation consequences, defendant immediately sought to withdraw the plea]; People v. Burgos, 37 Misc 3d 394, 415 [Sup. Ct. NY County 2012][defendant's family ties to United States and repeated attempts to legalize his status, both before and immediately after plea, manifested importance to him of remaining in United States]; People v. De Jesus, 34 Misc 3d 748, 760, 765 [Sup. Ct. NY County 2011][recognizing need to consider defendant's relative contemporaneous family and employment ties to both the United States and her country of origin in determining rationality of choosing trial, and noting defendant's expression of misgivings about immigration consequences immediately following entry of plea]).

III.DISCUSSION

On this motion, defendant's original argument was that he was denied his constitutional right to counsel under Padilla based upon his plea counsel's alleged failure to advise him that his guilty plea would render him subject to deportation. The People responded with the argument that the United States Supreme Court in Chaidez v. United States, supra, held that Padilla is not retroactive on collateral review in cases final on direct review prior to the issuance of the Padilla decision on March 31, 2010. In his reply, defendant appears to concede the People's Chaidez argument, accepting their view that the Supreme Court's interpretation of Teague v. Lane, 489 US 288 (1989), in Chaidez overrules the Appellate Division, First Department's earlier decision in People v. Baret and prevents New York courts from considering Padilla claims retroactively on collateral review.^[FN3] Nonetheless, he continues to urge that his counsel was ineffective under Padilla in not advising him of the deportation consequences of his plea, and that he is, therefore, entitled to vacation of the judgment.

Defendant's principal argument in reply, however, is that his plea violated his due process rights because it was not knowingly, intelligently or voluntarily made. In addition, he asserts his actual innocence of the crime of which he was convicted, that his conviction was procured through unspecified fraud and duress on the part of the court or a person acting on behalf of the court or the prosecutor (CPL §440.10[1][b]) and by unspecified improper and prejudicial conduct (CPL §440.10[1][f]). Because defendant now appears to rely primarily upon his due process claim, the court will first address that claim, and then address defendant's claim of ineffective assistance of counsel and remaining claims.

Defendant contends that he is entitled to vacatur of the judgment of conviction because [*11]his plea was unknowingly, unintelligently and involuntarily entered in violation of his due process rights. Specifically, he contends that he was not advised that he was pleading guilty to an aggravated felony for purposes of the Immigration and Naturalization Act (8 USC §1101[a][43]) and that his plea of guilty to such a crime would render him subject to deportation, without the possibility of cancellation of removal (8 USC §1229b[a]).

In People v. Ford, supra, the Court of Appeals held that the defendant was not entitled to vacation of his conviction on the grounds the failure to advise him of the deportation consequences of his plea constituted a violation of his federal and New York state constitutional rights to due process. (People v. Ford, supra, 86 NY2d at 405). As the Ford Court further explained:

The continuing vitality of Ford, to the extent that it differentiates between direct and collateral consequences of a plea for purposes of due process analysis and reaffirms that possible deportation is a collateral consequence, was reaffirmed in the recent decision of the Court of Appeals in People v. Harnett, supra. In Harnett, the defendant sought vacation of his plea on due process grounds, arguing that his plea was invalid because he was not advised that his guilty plea would subject him to possible supervision or confinement under the Sex Offender Management and Treatment Act (Mental Hygiene Law §10.01 et seq.)(SOMTA), which, he contended, was a direct consequence of his plea. The Harnett Court rejected the defendant's due process challenge, reasoning that the SOMTA-based consequences of a guilty plea were collateral, in that they are "peculiar to the individual's personal circumstances and . . . not within the control of the court system" (People v. Harnett, supra, 16 NY3d at 205 [quoting People v. Ford, supra, 86 NY2d at 403]), rather than direct consequences, which include "the core components of a defendant's sentence: a term of probation or imprisonment, a term of post-release supervision, a fine." (People v. Harnett, supra, 16 NY3d at 205). Significantly, in Harnett, the Court of Appeals also reiterated its earlier holding in Ford that "consequences that may be quite serious — [including] possible deportation in Ford . . . - are collateral." (People v. Harnett, supra, 16 NY3d at 206).

The Court of Appeals has thus determined in Ford, and confirmed subsequent to Padilla ^[FN4] [*12]in Harnett, that the consequence of which defendant complains, namely, possible deportation, is a collateral, not a direct, consequence of his plea. As defendant has not shown that he was not advised of a direct consequence of his plea, he has not established that his plea was entered involuntarily under the prevailing due process standard. (See Brady v. United States, supra, 397 US at 755; People v. Monk, supra, 21 NY3d at 32).

The Harnett Court did recognize that some consequences, although collateral, should be disclosed by the court to a pleading defendant in the interest of fairness, because they may be "of such great importance to [a defendant] that he would have made a different decision had that consequence been disclosed" (id. at 207 [quoting People v. Gravino, supra, 14 NY3d at 559]),^[FN5] and that "a plea made in ignorance of such consequences may sometimes be proved involuntary — if a defendant can show that the prospect of [the consequence] was realistic enough that it reasonably could have caused him, and in fact would have caused him, to reject an otherwise acceptable plea bargain" (People v. Harnett, supra, 16 NY3d at 205). The Harnett Court nonetheless found that the claim before it was not such an exceptional one, reasoning that the defendant had neither moved to withdraw his plea, nor furnished facts which would enable the court to determine the significance of the collateral consequences to him in the context of the plea bargain.

Similarly, here, this Gravino-Harnett exception is inapplicable. As in Harnett, defendant Caceras neither moved to withdraw his plea nor has he on this motion either alleged or made any factual showing that he unknowingly or unintelligently waived any of his rights, including the privilege against self-incrimination, the right to trial by jury or the right to confront his accusers, by entering his plea of guilty. (See Brady v. United States, supra; Boykin v. Alabama, 395 US 238, 243 [1969][guilty plea involves waiver of the privilege against self-incrimination, the right to trial by jury and the right to confront one's accusers]; People v. Harris, 61 NY2d 9, 17 [1983][same]). Indeed, on this motion, he fails to proffer the record of plea colloquy itself.

Neither has he made any factual showing on this motion that would have enabled the court to determine the significance of the collateral consequence of deportation to him at the time of his plea.

By contrast, in People v. Burgos, supra, the defendant demonstrated the significance of the deportation consequences of the plea to him by proffering evidence that at the time of the [*13]plea, he was married to a legal permanent resident, had an infant son who was a citizen of the United States, was gainfully employed here, had no known family ties to his country of origin or employment prospects there, and had twice applied for an adjustment of his status to enable him to remain here with his family. Similarly, in People v. De Jesus, supra, the defendant proffered evidence sufficient to establish that her "focus at the time of the representation [was] on establishing a life for herself and her children in the United States, and maintaining her family and employment ties in this country." (People v. De Jesus, supra, 34 Misc 3d at 769). While both Burgos and De Jesus involved claims of ineffective assistance under Padilla, and defendant's principal claim alleges a due process violation, CPL article 440 nonetheless requires an evidentiary basis in order to be entitled to a hearing, and defendant has made no such showing here.

Thus, he "has not persuasively demonstrated that . . . knowledge of the deportation consequences of his guilty plea reasonably could have caused him, and in fact would have caused him, to reject an otherwise acceptable plea bargain.'" (People v. Carty, 96 AD3d 1093, 1098 [3d Dept. 2012][quoting People v. Harnett, supra, 16 NY3d at 207]). As defendant has offered no evidentiary support for his claim, first advanced more than twelve years after the entry of his guilty plea, that his plea was not knowingly, intelligently and voluntarily made, the motion, to the extent it rests on due process grounds, is denied. (CPL §440.30[4][b]; People v. Session, supra, 34 NY2d at 255-256).

In his original motion papers, citing Padilla, defendant asserted that he was entitled to vacation of his plea due to his plea counsel's failure to advise him of the deportation consequences of his plea. On this claim, the decision of the Appellate Division, First Department in People v. Verdejo, supra, which was issued while the instant motion was sub judice, is controlling. As stated above, in Verdejo, the First Department adopted the ruling in Chaidez that Padilla is not retroactively applicable on collateral review to cases that were final on direct review prior to the issuance of the decision in Padilla on March 31, 2010. Here, defendant's time to take an appeal the judgment of conviction before the First Department expired on April 13, 2001, 30 days after the entry of the judgment on March 14, 2001 (CPL §460.10[1][a]), without an appeal having been taken. As the instant case was final on direct review more than nine years prior to the issuance of Padilla, under Verdejo, which, pending the Court of Appeals' decision in Baret, is controlling on this court's decision on Padilla retroactivity under New York law, defendant's Padilla claim is not retroactively applicable on collateral review and therefore cannot be considered on its merits on this motion. It is, therefore, denied.

Were this court to review defendant's Padilla claim on its merits, it would reject it, as defendant proffers no factual support for it other than his own self-serving affidavit.^[FN6] While he [*14]avers that he has been a lawful permanent resident of the United States since 1992, and that all of his relatives now reside in the United States, he fails to proffer any factual averments as to the presence of his family members in the United States, contrasted with his extant family in his country of origin, contemporaneous with his plea. Furthermore, defendant makes no mention of any of the other Picca social factors as they were at the time of his plea, including his employment history in both countries; any steps he had taken prior to his guilty plea to remain legally in this country; his frequency of travel to his or her country of origin; any statements he made to the court, to the Department of Probation or to his reflecting defendant's contemporaneous connections to both countries; his ultimate residential plans; or any other facts or circumstances evincing his desire to remain in the United States. (People v. Picca, supra, 97 AD3d at 183-184). Accordingly, were this court to review this claim on its merits, it would deny it. (CPL §440.30[4][b]).

Thus, defendant has neither shown that his plea counsel's representation fell below an objective standard of reasonableness under the Strickland standard ^[FN7] nor has he overcome the presumption that he received meaningful representation under the Baldi-Benevento standard and applying the McDonald legal factors. Notwithstanding the strength of the People's case, defendant received an extremely advantageous plea bargain, in that having been charged with four class B felony offenses, including two drug sale counts and two drug possession counts, carrying the potential of consecutive sentences with maximum terms of 25 years each, he was convicted of only one class C felony offense and received a non-incarceratory sentence. His motion to vacate the judgment on grounds of ineffective assistance of counsel, if considered on its merits, would thus be denied.

IV.CONCLUSION

For the reasons stated, defendant's motion to vacate the judgment of conviction is denied, without a hearing.