PEOPLE v. MAZZINI MARTINEZ (2024)

Order, Supreme Court, Bronx County (Margaret L. Clancy, J.), entered on or about May 13, 2016, which, after a hearing, denied defendant's CPL 440.10 motion to vacate a judgment of conviction, unanimously affirmed.

The court properly denied defendant's CPL 440.10 motion, in which he claimed that his counsel rendered ineffective assistance by failing to apprise him of the immigration consequences of his guilty plea.  We find no basis for disturbing the court's credibility determinations (see People v. Mebuin, 181 A.D.3d 469, 470, 117 N.Y.S.3d 571 [1st Dept. 2020], lv denied 35 N.Y.3d 1047, 127 N.Y.S.3d 863, 151 N.E.3d 544 [2020]).  During the plea proceeding, the court asked if there were any potential immigration consequences for defendant, and counsel responded, “Not that I'm aware of at this time.”  Defendant's guilty plea to attempted criminal possession of a forged instrument in the second degree, however, subjected him to mandatory deportation because the offense, committed within five years of defendant's admission to the United States, constituted a crime of moral turpitude for which the incarceratory sentence was a year or more (see 8 USCA § 1227[a][2][A][i];  Rotimi v. Holder, 577 F.3d 133, 135 [2d Cir. 2009]) and rendered defendant ineligible for cancellation of removal (see 8 USCA § 1229b[a][2], [d][1][B];  Heredia v. Sessions, 865 F.3d 60, 66 [2d Cir. 2017], cert denied 583 U.S. 1057, 138 S.Ct. 677, 199 L.Ed.2d 536 [2018]).  In the context of a guilty plea that triggers mandatory deportation, a noncitizen defendant is deprived of effective assistance if counsel fails to advise the defendant that deportation is presumptively mandatory (Padilla v. Kentucky, 559 U.S. 356, 369, 374, 130 S.Ct. 1473, 176 L.Ed.2d 284 [2010];  see People v. Pequero, 158 A.D.3d 421, 422, 67 N.Y.S.3d 813 [1st Dept. 2018]).

Here, by failing to advise defendant that his plea would result in mandatory deportation, counsel's performance “fell below an objective standard of reasonableness” (see People v. Lopez, 198 A.D.3d 515, 515, 155 N.Y.S.3d 161 [1st Dept. 2021], lv denied 38 N.Y.3d 929, 164 N.Y.S.3d 34, 184 N.E.3d 855 [2022]).

However, defendant failed to establish the prejudice prong of his ineffective assistance claim.  Given defendant's testimony that his “top priority” at the time of his plea was to avoid incarceration, the strength of the People's case against him, his strong family ties in his home country of Ecuador, the favorable plea bargain he received that resulted in a probationary sentence, and the potential sentence that he faced if convicted after trial, the court properly determined that defendant failed to establish a reasonable probability that he would have proceeded to trial had counsel informed him that mandatory deportation would result from 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]).