Opinion
2007NA004063.
Decided April 15, 2008.
Hession, Bekoff Cooper, L.L.P, Attorney for Defendant, Garden City, New York.
Kathleen Rice, District Attorney Nassau County, Attorneys for Plaintiff, Hempstead, New York.
The defendant's motion, pursuant to CPL § 440.10, seeking a vacatur of the judgment of conviction entered on April 20, 2007 is hereby denied as the defendant fails to set forth sufficient grounds for vacatur pursuant to CPL § 440.10.
The defendant was charged in a Felony Complaint with Sexual Abuse in the First Degree in violation of Penal Law § 130.65(1) and in a District Court Information with Attempted Rape in the Third Degree in violation of Penal Law § 110/130.25(3). On April 20, 2007, he pled guilty, in satisfaction of the docket, to Forcible Touching, a class A misdemeanor, in violation of Penal Law § 130.52, in that he "intentionally, and for no legitimate purpose, forcibly touche(d) the sexual or other intimate parts of another person for the purpose of degrading or abusing such person; or for the purpose of gratifying the actor's sexual desire." He was sentenced to 90 days in the Nassau County Corrections Center with surcharges that were subsequently paid. As part of the sentence, a permanent order of protection was issued by the court directing the defendant to stay away from the complaining witness. He also waived his rights to appeal. The defendant claims that he is now subject to deportation as a result of this conviction and seeks to vacate the plea and judgment on the ground of a lack of an interpreter for the defendant at the time of his plea and sentence which impaired his understanding of the proceedings. He also claims ineffective assistance of counsel because, when he entered his plea, he was not made aware that his conviction could result in deportation.
The Court has reviewed the transcript of the defendant's plea and sentence. It is clear from the record that the defendant understood and responded appropriately to all questions put to him by the Court. Additionally, the defendant was represented by two separate attorneys, one at arraignment and one for his plea and sentence, neither of whom requested an interpreter for the defendant after consultation with him. Accordingly, defendant's motion to vacate the plea and sentence based on a lack of an interpreter for the defendant is denied.
Upon completion of his jail sentence, the defendant was transported to an immigration facility in New Jersey. He has remained in immigration custody and is awaiting deportation proceedings based upon his plea and sentence. Defendant claims that had he known that entering a plea of guilty could lead to deportation, he would not have entered this plea. Even assuming, however, that his claim is true, he is not entitled to the relief requested. The only ground set forth in CPL § 440.10 which could conceivably apply to the defendant is CPL § 440.10[h]), to wit, that the conviction was obtained in violation of some constitutional right. The defendant contends that he was not made aware of any possible immigration consequences that might arise as a result of his guilty plea. It is well settled, however, that the failure to warn a defendant of "collateral consequences" of a guilty plea, including the possibility of deportation, does not constitute ineffective assistance of counsel and does not warrant vacating a guilty plea ( People v. Ford , 86 NY2d 397; People v. Boodhoo , 191 AD2d 448). In People v. Latham , 90 NY2d 795, the Court further stated that "although a defendant must be advised of direct consequences, a defendant need not be advised of collateral consequences before it can be said that the defendant's plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant" ( quoting, People v. Ford , supra).
As articulated by the Court in People v. DeJesus , 12 Misc 3d 913: To determine whether a consequence of a sentence is direct or collateral courts apply a two-part test. First, the court must determine if the consequence is "one which has a definite, immediate and largely automatic effect on the defendant's punishment." (People v. Ford, supra, at p. 403, 633 NYS2d 270, 657 NE2d 265.) Second, the court must determine if the consequence is imposed by the court or an independent agency. (see, Sanchez v. United States, 572 F.2d 210, 211 (9th Cir.1977); People v. Ford, supra, at p. 403, 633 NYS2d 270, 657 NE2d 265) If the consequence is both definite and immediate and imposed by the court, the consequence is considered a direct consequence of the sentence and requires notification to the defendant of the consequence.
No matter how automatically a defendant's deportation might follow from his conviction, it remains beyond the control and responsibility of the court in which the conviction was entered, here the Nassau County District Court, and it thus remains merely a collateral consequence of his plea and conviction ( U.S. v. Gonzalez , 202 F.3d 20). Such a failure to advise a defendant regarding immigration consequences is not ineffective assistance of counsel and does not provide a basis upon which to vacate a conviction ( People v. McDonald , 1 NY3d 109).
Accordingly, the defendant's motion to vacate his plea of guilty pursuant to CPL § 440.10 is denied.
So Ordered: