The People of the State of New York, Respondent, v. Norbin Hernandez-Zuniga, Appellant. (2026)

ORDERED that the order is affirmed.

A judgment was rendered in the Justice Court of the Town of Southampton, Suffolk County (Barbara L. Wilson, J.), on April 27, 2018 convicting defendant of false personation (Penal Law § 190.23), upon his plea of guilty, in satisfaction of that charge and five Vehicle and Traffic Law charges, and the court sentenced defendant to time served. By notice of motion dated July 20, 2022, defendant moved, pursuant to CPL 440.10 (1) (h), to vacate the judgment of conviction on the grounds that his assigned counsel "(i) failed to investigate his immigration status and the immigration consequences of his guilty plea, (ii) failed to advise [him] of the immigration consequences associated with accepting a plea to the charge of false personation . . ., and (iii) failed to negotiate a plea without such drastic immigration consequences; accordingly, her performance fell below an objective standard of reasonableness, and those failures prejudiced [defendant], depriving him of effective assistance of counsel under federal and state law" (emphasis in original).

In an affidavit in support of the motion, defendant stated, among other things, that he was born in Honduras, and, in 2014, when he was 17, after being abandoned by his mother and fearing gang violence, he traveled to the United States with the hope of reaching his uncle, who lived in New York. Upon his crossing the border into Texas, the Department of Homeland Security immediately took him into custody and he spent one month confined in an Immigration and Customs Enforcement detention facility until he was released into his uncle's custody. An attorney was subsequently hired to help him apply for Special Immigrant Juvenile status. Upon his arrest on June 27, 2017 in relation to the instant matter, he and his Legal Aid Society attorney ("assigned counsel") discussed his immigration status, but she neither told him how his case would affect his status nor provided him with any other advice related to his "immigration case." He did not speak with her again until April 27, 2018.

On March 6, 2018, defendant was arrested in the Village of Sag Harbor, New York, on an unrelated matter, where the court appointed a different Legal Aid Society attorney. Defendant was incarcerated while that case was pending because he could not pay bail. On April 27, 2018, he pleaded guilty to petit larceny (Penal Law § 155.25) and criminal trespass in the second degree (Penal Law § 140.15) in the Sag Harbor matter. Since defendant had an outstanding warrant, he was immediately transported to the Justice Court of Southampton. Later that day, he told assigned counsel that he had been incarcerated for almost two months and that he "just wanted to get out of jail." Assigned counsel informed him that he would only get out of jail that day if he pleaded guilty to false personation, without telling him that there would be immigration consequences for such a conviction. Defendant further asserted that he would never have pleaded guilty to false personation had he known its immigration consequences, which included being subject to detention and removal, notwithstanding that he was eager to get out of jail.

Defendant annexed an affidavit from assigned counsel, in which she confirmed that, when she first met defendant before his arraignment, she did not provide him with any immigration advice even though he had informed her that he was not a United States citizen. She also did not speak with him about the immigration consequences that would result from a conviction of any of the charges. Additionally, assigned counsel admitted that she did not seek any immigration advice concerning defendant pleading guilty to false personation prior to the plea proceeding, nor did she seek immigration advice following defendant's guilty pleas to petit larceny and criminal trespass in the second degree resulting from the Sag Harbor incident.

In opposition to defendant's motion, the People contended that it should be denied without a hearing since defendant failed to establish that his assigned counsel's representation was deficient or that defendant was prejudiced as a result thereof.

By order dated March 14, 2024, the matter was transferred from the Justice Court of the Town of Southampton, Suffolk County, to the Justice Court of the Town of Riverhead, Suffolk County. By order dated June 24, 2024, the Justice Court of the Town of Riverhead (Lori M. Hulse, J.) denied the motion without conducting a hearing, finding, among other things, that defendant was repeatedly advised by the court, both at the beginning and end of the allocution to the false personation charge, that pleading guilty to that charge "could have a negative impact on any immigration proceedings." Thus, the court concluded that, even if assigned counsel had failed to properly advise defendant of the immigration consequences of pleading guilty, defendant was indisputably aware of the possible consequences before he entered his plea. Consequently, defendant could not show prejudice resulting from his attorney's alleged failure to provide that advice herself.

We agree with the Justice Court's determination denying defendant's motion without an evidentiary hearing. The record demonstrates that, at the plea proceeding, the Justice Court told defendant, both before and after his allocution, that the plea "could have a negative impact on any immigration proceedings." Defense counsel, in effect, adopted the court's advisement by asking defendant whether he understood what the court had told him. Defendant responded in the affirmative, acknowledged his understanding to the court, and went forward with the plea. Consequently, defendant failed to establish, sufficiently to even warrant an evidentiary hearing, that his attorney's claimed failure to advise of him of the immigration consequences of his plea had the requisite impact on his defense, under either the federal or state standard, as he was indisputably made aware of such possible consequences before he entered his plea (see People v Adams, 237 AD3d 966 [2025]; People v Ramroop, 236 AD3d 931 [2025]).¹

Accordingly, the order is affirmed.

DRISCOLL, P.J., WALSH and VAZQUEZ-DOLES, JJ., concur.

ENTER:

Jennifer Chan

Chief Clerk

Decision Date: September 24, 2026

FOOTNOTES

1.   The record further demonstrates that, on April 27, 2018, hours before pleading guilty in the instant matter, defendant was informed by the court which had presided over the Sag Harbor matter that, "by taking a misdemeanor plea [to petit larceny and criminal trespass in the second degree,] it could have a detrimental affect on your ability to stay in this country and your immigration status."