PEOPLE v. SHABAAN (2016)

Order, Supreme Court, New York County (Laura A. Ward, J.), entered on or about May 1, 2015, which denied defendant's CPL 440.10 motion to vacate a 2008 judgment of conviction, unanimously affirmed.

Defendant argues that his counsel affirmatively misadvised him about the immigration consequences of his plea (see People v. McDonald, 1 NY3d 109, 111 [2003] ). However, neither counsel's statement that he would “do what he could to help” defendant with respect to defendant's stated desire to join the Army, nor counsel's request that the court issue a certificate of relief from disabilities to help defendant enlist despite his conviction, constituted an assurance or mistaken advice that defendant would not be deported as a consequence of his plea.

Defendant further argues that his attorney rendered ineffective assistance in the plea bargaining process, in that he failed to minimize the immigration consequences of the conviction by obtaining a plea to a drug felony based on the weight of the drugs rather than intent to sell. However, the submissions on the motion fail to establish any reasonable probability that the People would have made such an offer (see Lafler v. Cooper, 566 U.S. –––, ––––, 132 S Ct 1376, 1384–1385 [2012] ).

In any event, defendant has not established prejudice. There is no indication that but for his attorney's allegedly deficient performance, defendant would have proceeded to trial instead of pleading guilty (see People v. Hernandez, 22 NY3d 972, 975–976 [2013] ).

Defendant's claim that the court gave misleading advice concerning the immigration consequences of the plea (see People v. Peque, 22 NY3d 168 [2013], cert denied 574 U.S. ––––, 135 S Ct 90 [2014] ) is not cognizable on a CPL article 440 motion (see People v. Llibre, 125 AD3d 422, 423 [1st Dept 2015], lv denied 26 NY3d 969 [2015] ). In any event, Peque is only retroactive to cases pending on direct appeal, and not convictions that have become final (id. at 424).