Opinion
2010CN006198
10-21-2011
The People of the State of New York v. Quing Lin Zeng, Defendant
For the People: NY County District Attorney's Office by ADA Sara Zenreich, One Hogan Place, NY. Defendant, pro se.
For the People: NY County District Attorney's Office by ADA Sara Zenreich, One Hogan Place, NY.
Defendant, pro se.
Richard M. Weinberg, J.
Defendant was arrested on July 20, 2010 for selling "swipes" at the subway station at 42nd Street and Eighth Avenue. He was charged with Petit Larceny (PL 155.25), Loitering (PL 240.35) and Illegal Access to Transit Authority Services (TAR 1050.4(c). At his arraignment before this Court at Midtown Community Court, defendant pled guilty to Petit Larceny. He was sentenced to a conditional discharge with a mandate to complete three days of the Midtown Treatment Readiness Program and one session of Shop Talk. This conditional discharge had a 30 day jail alternative. The Treatment Readiness Program is designed to help a person with his substance abuse issues. Shop Talk addresses homelessness and housing options. Defendant walked away from both of these opportunities for help.
By not taking advantage of the opportunities offered to him, defendant failed to fulfill the conditions of his conditional discharge. On November 4, 2010, a declaration of delinquency was signed and a bench warrant was issued. Defendant was involuntarily returned on the warrant to Part A, where he pled guilty to a violation of the conditional discharge and received a 20 day jail sentence.
Defendant now moves, pro se, to vacate 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) because his attorney failed to advise him of the immigration consequences of his plea. Defendant further alleges that he has been prejudiced by this ineffective assistance of counsel because he now faces deportation. All allegations of fact essential to the motion are made solely by defendant and are unsupported by any other affidavit or evidence.
To prevail on an ineffective assistance of counsel claim, defendant must show that counsel's performance was deficient and that the deficient performance prejudiced the defendant. Strickland v Washington (466 US 668); People v Mc Donald (1 NY3d 109). In order to establish prejudice under Strickland, defendant "must convince the court that a decision to reject the plea bargain would have been rational under the circumstances". Padilla, (supra, at 1485).
Defendant was charged with an "A" misdemeanor and faced up to one year in jail if convicted after trial. At the arraignment, the People recommended a 10 day jail term on a plea to the "A" misdemeanor. Defense counsel then negotiated a highly favorable, non-jail disposition, defendant was fully allocuted by the Court and the plea to Petit Larceny was entered.
In the approximately two year time span preceding this case, defendant had pled guilty to Petit Larceny on four different occasions and, on yet another occasion, had pled guilty to Criminal Possession of Marihuana in the 5th degree. Defendant had served a 10 day jail sentence on one of the prior Petit Larceny convictions. Given this extensive record, defendant's claim that he would not have accepted this favorable disposition had he been advised of the possibility of adverse immigration consequences is simply not credible. The possibility that defendant might be deported existed well before this conviction. A fifth conviction for petit larceny would simply be surplusage. If there were to be any prejudice flowing from this conviction, it would flow from defendant being incarcerated. Incarceration would increase defendant's chances of being deported since, as pointed out by the People, "ICE (U.S. Immigration and Customs Enforcement)specifically targets incarcerated individuals". See People v Cristache (29 Misc 3d 720). Rather than being prejudiced by this non-jail disposition, defendant actually lessened his chances of being deported by accepting this plea offer. The fact that defendant was ultimately incarcerated on this case flowed directly and exclusively from his own failure to fulfill his part of the plea agreement.
Because defendant has failed to make even a prima facie showing of prejudice, the Court need not address his completely unsupported assertion that defense counsel failed to properly advise him pursuant to Padilla v Kentucky (supra). Likewise, the Court may properly deny his motion without a hearing. CPL 440.30; People v McDonald (supra, at 115).
Defendant's motion to vacate judgment pursuant to CPL 440.10 is hereby denied.
This constitutes the decision and order of the Court.
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New York, New YorkRichard M. Weinberg
Judge