On August 8, 2003, defendant was arrested and charged with the B misdemeanor of Criminal Possession of Marihuana in the Fifth Degree (PL §221.10[2]) and the violation of Unlawful Possession of Marihuana (PL §221.05) under Docket 2003NY053237. These charges stemmed from the recovery by the police of eight clear plastic bags of marihuana and five glassine envelopes of marihuana from a bag in the defendant's possession. At his arraignment the following day, where he was represented by the Legal Aid Society, the defendant received a Marihuana ACD pursuant to CPL §170.56. This case was subsequently restored to the calendar due to a new arrest on October 14, 2003. On February 25, 2004, now represented by private counsel, the defendant pled guilty on the restored case to the charge of Criminal Possession of Marihuana in the Fifth Degree in exchange for a promised sentence of a straight conditional discharge.

On October 14, 2003, defendant was arrested, as noted above, and charged with the A misdemeanor of Criminal Sale of Marihuana in the Fourth Degree (PL §221.40) and the violation of Unlawful Possession of Marihuana (PL §221.05) under Docket 2003CN008715. These charges stemmed from a Police Officer's observation of defendant selling a bag of marihuana to a separately charged individual in front of 1400 Broadway in Manhattan. That bag of marihuana was subsequently recovered from the separately charged individual's right front pants pocket. [*2]Additionally, the police recovered five bags of marihuana from the defendant's left front pants pocket and five bags of marihuana from the defendant's right front pants pocket. Defendant was initially represented by the Legal Aid Society. Following several adjournments and motion practice, the Legal Aid Society was relieved on January 29, 2004 because the defendant had retained private counsel. On February 25, 2004—the same day that he pled guilty under Docket 2003NY053237—the defendant pled guilty to the charge of Criminal Sale of Marihuana in the Fourth Degree in exchange for a promised sentence of a conditional discharge with seven days of community service. Defendant failed to complete his community service obligations. A Declaration of Delinquency was signed and a warrant was ordered on April 28, 2004 in Part ASC.

On March 2, 2004—less than a week after receiving conditional discharges in his two marihuana cases—the defendant was arrested and charged with the B Felony of Conspiracy in the Second Degree. Following his arraignment, the defendant was remanded for the pendency of this case. While the defendant was being held in jail on his Conspiracy case, he was returned on the ASC warrant on October 29, 2004. On that date, the defendant pled guilty to a violation of his conditional discharge under Docket 2003CN008715 and received a sentence of time served. The defendant's Conspiracy in the Second Degree case, to which he also pled guilty, was ultimately dismissed and sealed in August of 2006 due to the defendant's cooperation with the District Attorney's Office. (The Court notes that the information concerning the defendant's Conspiracy case and his cooperation with the District Attorney's Office was publicly disclosed by the defendant in his own affidavit submitted as part of his motion papers.)

Meanwhile, a Removal proceeding was initiated against the defendant by the Immigration and Naturalization Service on June 24, 2006 while the defendant was in custody on his Conspiracy case. The Removal proceeding was based upon the defendant's conviction for Criminal Sale of Marihuana in the Fourth Degree under Docket 2003CN008715. Defendant was released to ICE custody from Rikers Island following the dismissal of his Conspiracy case in August 2006. Thereafter, the defendant's lawful permanent resident status was revoked and he was ordered removed from the United States to Guyana. On March 27, 2007, the defendant's application for deferral of removal under the Torture Convention was granted. As a result of this deferral, the defendant remains a resident of the United States.

Defendant now moves to vacate this judgment pursuant to CPL §440.10. He alleges that he received ineffective assistance of counsel under the standards articulated in Padilla v Kentucky, 130 S Ct 1473 (2010) and People v Ford, 86 NY2d 397 (1995), because his attorney mis- advised him of the immigration consequences of his plea and such mis-advice has prejudiced him. Defendant also asserts a claim of actual innocence. He further states that he had maintained his innocence throughout the proceedings, that he did not fully understand the pleas and their consequences, that he accepted the offers because "that was the only avenue presented", and that he was advised to accept the offers to avoid incarceration. According to defendant, defense counsel "assured me that I would not be deported as a result" of pleading guilty. Defendant further asserts that, but for the mis-advice, he would have gone to trial and risked [*3]harsher punishment because he was innocent and because nothing is more important to him than remaining in this country.

Defendant also claims that his pleas were involuntary because the Court failed to advise him about the immigration consequences of his pleas.

To prevail on an ineffective assistance of counsel claim, defendant must show that counsel's performance was deficient, that is, it was unreasonable under the prevailing professional norms at the time of representation. Defendant must also show that this deficient performance prejudiced the defendant. Strickland v Washington, 466 US 668 (1984); People v Mc Donald,1 NY3d 109 (2003). Failure to establish either deficient performance or prejudice is fatal to defendant's motion. Under the New York Constitution, a defendant is entitled to meaningful representation. The New York standard, which offers greater protection to a defendant, focuses on the fairness of the process as a whole rather than its particular impact on the outcome of the case. People v Caban, 5 NY3d 143 (2005). In the context of a guilty plea, a defendant has been afforded meaningful representation when he receives an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel. People v Ford, 86 NY2d 397 (1995).

As noted above, a defense counsel's performance is to be evaluated under the prevailing norms at the time of representation. Padilla, decided in 2010, makes clear that professional norms now require that a defense attorney advise his client on the immigration consequences of a plea. Prior to Padilla, the immigration consequences of a plea were considered collateral and, absent affirmative mis-advice, the failure to advise a defendant of those immigration consequences neither rendered counsel's performance deficient nor made the plea involuntary. Padilla is not retroactive and does not apply to collateral challenges to convictions which became final prior to the Padilla decision. Chaidez v United States, 133 S. Ct. 1103 (2013); People v Baret, 23 NY3d 777 (2014). Even were a defendant to establish affirmative mis-advice, he must further establish that such mis-advice was "egregious and prejudicial error" such that it denied him meaningful representation. People v Soodoo, 109 AD3d 1014 ( 2nd Dept 2013), lv dn 23 NY3d 968 (2014), citing People v Benevento, 91 NY2d 708 (1998).

Initially, the Court notes that the defendant's Removal proceeding was predicated upon his conviction for Criminal Sale of Marihuana in the Fourth Degree under Docket 2003CN008715. There is no specific allegation of prejudice flowing from the defendant's conviction under Docket 2003NY053237. Therefore, his motion to set aside the conviction under Docket 2003NY053237 is denied on the ground of lack of prejudice.

The defendant claims, among other grounds, that his pleas were involuntary because the Court did not advise him of the immigration consequences of his pleas. See People v Peque, 22 NY3d 168 (2013). Such a claim concerning a deficiency in a plea allocution is record-based and must be raised by way of direct appeal. It may not be raised by way of a CPL 440 motion. People [*4]v Simpson, 120 AD3d 412 (1st Dept 2014). Furthermore, Peque does not apply retroactively to the defendant's 2003 convictions. People v Llibre, 125 AD3d 422 (1st Dept 2015).

The defendant's allegation of affirmative mis-advice, made for the first time some dozen years after his conviction and almost eight years after he had been notified in writing of adverse immigration consequences, is unsupported by any other evidence and is seriously undermined by defendant's allegations of actual innocence and lack of understanding. Defendant portrays himself as an innocent victim of the judicial process who, without understanding what he was doing, entered guilty pleas to crimes he did not commit. These allegations are convincingly contradicted by the records of these cases. Although the defendant was charged only with marihuana possession in his first case, the eight clear plastic bags and five glassine envelopes of marihuana recovered from the defendant strongly indicate that the possession was with an intent to sell. In his second case, a mere two months later, the defendant was observed by a police officer actually selling such bags of marihuana. Not only was the defendant observed selling the marihuana, but the police also recovered the sold item from the purchaser as well as a further ten bags of marihuana from the defendant's pockets. Positive lab reports were also filed in this case prior to the defendant's guilty plea. For the defendant to now assert a claim of actual innocence convincingly destroys his credibility.

The defendant initially received an adjournment in contemplation of dismissal—a lenient and favorable non-jail disposition. Rather than taking advantage of this favorable result by leading a law-abiding life, the defendant took the opportunity to continue a life of crime. After this case was restored to the calendar because of his new arrest for selling marihuana, the defendant received yet another favorable result on his first case by receiving a sentence of a straight conditional discharge upon his guilty plea— again avoiding jail. He also avoided jail on his new arrest for selling marihuana by pleading guilty in exchange for a sentence of a conditional discharge with seven days of community service. Unfortunately for the defendant, his luck at keeping himself out of jail so that he could continue with business as usual came to an end less than one week later when he was arrested for the B felony of Conspiracy in the Second Degree.

Rather than being an innocent victim of the judicial process, this defendant was a serial manipulator of that process whose primary goal was to keep himself out of jail so that he could continue his drug business. The defendant appears to continue his manipulations with this motion.

The defendant faced up to a year and three months in jail on his two cases. Defense counsel negotiated highly favorable, non-incarceratory dispositions on his behalf. There is nothing in the record that casts doubt on the apparent effectiveness of counsel. Defendant received the meaningful, effective representation to which he was entitled.

Furthermore, the allegations of fact essential to this motion are made solely by the defendant, are unsupported by any other affidavit or evidence, and under these and all the other [*5]circumstances attending the cases, there is no reasonable possibility that such allegations are true. Accordingly, the defendant's motion to set aside judgment in each of the two subject cases is denied. CPL §440.30 (4)(d); People v Melo-Cordero, 123 AD3d 595 (1st Dept 2014).

This constitutes the decision and order of the Court.

Judge