PEOPLE v. LAFONTANT (2020)

Judgment, Supreme Court, New York County (Kevin McGrath, Jr., J. at plea;  Curtis Farber, J. at sentencing), rendered April 2, 2018, convicting defendant of attempted identity theft in the first degree, and sentencing him, as a second felony offender, to a term of 11/212 to 3 years, unanimously affirmed.

Defendant's claim of ineffective assistance of counsel is not reviewable on direct appeal because the existing record does not reveal what advice trial counsel actually gave defendant concerning the immigration consequences of his guilty plea.  The existing record shows that, after the plea court made general references to some possible immigration consequences, it asked if defense counsel had “explained those potential negative immigration consequences” to defendant, and counsel answered “yes, I did, your Honor.”  Defendant argues that this interchange establishes that his counsel rendered ineffective assistance by misadvising him that there merely was a “potential” for deportation, when in fact deportation was mandatory (see Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 [2010];  People v. Pequero, 158 A.D.3d 421, 422, 67 N.Y.S.3d 813 [1st Dept. 2018] ).  However, counsel did not elaborate on the content of his conversation with defendant, including whether he told defendant that deportation was a “potential” or “mandatory” consequence of his plea.  The plea court's yes-or-no question did not call on counsel to volunteer any details of the conversation or clarify what advice he gave.  Thus, the record does not establish whether counsel's advice was accurate or inaccurate.  “Without further development of the record by way of a CPL 440.10 motion, it cannot be determined exactly what discussions were had with defendant regarding the immigration consequences of his plea” (People v. Gomez, 186 A.D.3d 422, 423, 129 N.Y.S.3d 60 [1st Dept. 2020];  see also People v. Ramos, 169 A.D.3d 425, 91 N.Y.S.3d 886 [1st Dept. 2019] ).

I join the majority in affirming because I am constrained to do so by this Court's decision in People v. Gomez, 186 A.D.3d 422, 129 N.Y.S.3d 60 [1st Dept. 2020].  However, I continue to believe that was wrongly decided for the reasons stated in my dissent.

All concur except Gesmer, J. who concurs in a separate memorandum as follows: