PEOPLE v. GATIEN (2005)

Order, Supreme Court, New York County (Bruce Allen, J.), entered on or about August 19, 2003, which denied defendant's CPL 440.10 motion to vacate a judgment, same court and Justice, rendered March 19, 1999, convicting him, upon his plea of guilty, of grand larceny in the second degree, offering a false instrument for filing in the first degree, and filing a false return for personal income and earnings tax, and sentencing him to a term of 5 years' probation concurrent with two concurrent terms of 90 days, and imposing fines in the amount of $250,000 and restitution in the amount of $1,422,379, unanimously affirmed.

The court properly denied defendant's CPL 440.10 motion.   Defendant's factual allegations were insufficient to support a claim that his guilty plea should be vacated on the ground of ineffective assistance of counsel (see Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 [1985] ).   Contrary to defendant's claim, counsel's advice relative to the deportation consequences of his plea, judged on the facts of the particular case and viewed as of the time the advice was rendered (see Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ), did not fall below an objective standard of reasonableness (compare People v. McDonald, 1 N.Y.3d 109, 769 N.Y.S.2d 781, 802 N.E.2d 131 [2003] ).   Counsel's advice, provided after consultation with experts on immigration law, on the deportation consequences of defendant's plea, was sound at the time the advice was given (compare United States v. Couto, 311 F.3d 179 [2002] ), and it did not express an inappropriate level of expectation as to those consequences.   This advice was only rendered erroneous by subsequent developments in two areas of the law that a competent attorney could not be expected to have reasonably foreseen.

Since defendant did not satisfy the first prong of the Strickland test, there is no need to determine whether defendant established prejudice.   We have considered and rejected defendant's remaining claims.