Opinion
10156 Ind. No. 3380/16 Case No. 2022–00647
02-21-2023
The PEOPLE of the State of New York, Respondent, v. Patrick JOHNSON, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (V. Marika Meis of counsel), for appellant. Alvin L. Bragg, Jr., District Attorney, New York (Michael J. Yetter of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (V. Marika Meis of counsel), for appellant.
Alvin L. Bragg, Jr., District Attorney, New York (Michael J. Yetter of counsel), for respondent.
Renwick, J.P., Gesmer, Moulton, Kennedy, JJ.
Judgment, Supreme Court, New York County (Michael R. Sonberg, J.), rendered March 7, 2017, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the third degree, and sentencing him to a term of two years, unanimously affirmed. Purported appeal from a decision of Supreme Court, New York County (Steven M. Statsinger, J.), dated January 13, 2022, dismissed as subsumed in the appeal from the judgment.
We previously held this appeal in abeyance ( 177 A.D.3d 484, 114 N.Y.S.3d 303 [1st Dept. 2019] ) to afford defendant the opportunity to demonstrate a reasonable probability that he would not have pleaded guilty if he had been made aware that his plea would subject him to mandatory deportation. Supreme Court conducted a thorough hearing, and based upon the evidence adduced, the motion court providently found that defendant did not meet that burden.
Initially, we find no basis for disturbing the court's credibility determinations (see People v. Pinilla, 164 A.D.3d 452, 453, 82 N.Y.S.3d 20 [1st Dept. 2018], lv denied 32 N.Y.3d 1127, 93 N.Y.S.3d 266, 117 N.E.3d 825 [2018] ). The court properly focused on the contemporaneous record to determine defendant's preferences rather than "post hoc assertions from a defendant about how he would have pleaded but for his attorney's deficiencies" ( Jae Lee v. United States, 582 U.S. ––––, ––––, 137 S.Ct. 1958, 1967, 198 L.Ed.2d 476 [2017] ). The court had a sound basis for discrediting defendant's testimony that immigration consequences were of paramount concern at the time of his plea. The record reflects that defendant was primarily concerned with his sentencing exposure rather than the immigration consequences of his plea. He received a notice of immigration consequences, and he was directly warned by the court that the charges he faced would subject him to automatic deportation. During the plea colloquy, defendant confirmed that he wished to plead guilty "regardless of any adverse immigration consequences that may result." Furthermore, only a month later, defendant pleaded guilty in two Bronx County cases despite an explicit warning that those convictions would subject him to mandatory deportation. Defendant's arguments for disregarding the Bronx cases are unpersuasive.
In addition, by pleading guilty, defendant received a beneficial disposition, and the People's case against defendant was strong. Although he testified about his incentives to remain in the United States, including his relatives and employment, he also has family in Jamaica, including a young son. Under these circumstances, the motion court appropriately held that defendant failed to establish that he would not have pleaded guilty if he had been advised by his attorney that deportation was mandatory, and not merely the most likely result of his plea (see People v. Martinez, 180 A.D.3d 190, 193, 117 N.Y.S.3d 199 [1st Dept. 2020], lv denied 35 N.Y.3d 972, 125 N.Y.S.3d 6, 148 N.E.3d 470 [2020] ).