People v Barclay

[*1] People v Barclay 2006 NY Slip Op 50947(U) [12 Misc 3d 1158(A)] Decided on May 22, 2006 City Court Of Mount Vernon Seiden, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 22, 2006
City Court of Mount Vernon

The People of the State of New York,

against

Petrolyn Barclay, Defendant.



05-3312



Westchester County District Attorney

Mount Vernon branch

Judith F. Permutt, Esq.

Attorney for Defendant

111 Brook Street

Scarsdale, New York 10583

Adam Seiden, J.

The defendant, having entered a plea of guilty to the charge of unlawful possession of marihuana (P.L. 221.05) and having been sentenced on October 17, 2005, now moves to vacate the judgment pursuant to CPL 440.10(1)(h). The defendant has not appealed from the judgment. The People oppose the motion.

On this motion, the defendant seeks to vacate her plea on the ground that she had not been informed by either her counsel or the District Attorney's office that pleading guilty to the above charge would have the effect of delaying her eligibility for U.S. citizenship for five years, and possibly preventing her eligibility on a permanent basis. She seeks to vacate her plea to the charge of unlawful possession of marihuana and instead plead guilty to the charge of disorderly conduct, which charge would not have negative immigration consequences. The defendant claims that the plea she entered into was not "knowingly and voluntarily made" since she was unaware of the immigration consequences of pleading guilty to that charge.

To overcome the presumption of regularity which attaches to judgments of conviction, defendant is required to come forward with allegations sufficient to demonstrate that the nonrecord facts sought to be established would entitle him to relief (People v Satterfield, 66 NY2d 796, 799 (1985); People v Crippen, 196 AD2d 548, 549 (2d Dept 1993)). Where, as here, the motion can be decided on the record and defendant's submissions, no hearing is required (People v Satterfield, supra, at 799).

The law is clear that neither the court nor counsel is required to warn a defendant of the potential immigration consequences of a guilty plea, since this is deemed a collateral consequence (People v Hernandez, 208 AD2d 951 (2d Dept 1994); People v Ford, 205 AD2d 798 (2d Dept 1994); People v Boodhoo, 191 AD2d 448, 449 (2d Dept 1993); see also People v McDonald, 1 NY3d 109 (2003) ["The mere failure to advise a defendant of the possibility of deportation does not constitute ineffective assistance of counsel."]). While some courts have held that an affirmative misstatement by counsel regarding defendant's immigration status may constitute ineffective assistance (see People v McDonald, supra), the defendant in this case contends only that she was never advised of the potential negative consequences and not that she was given wrong information. [*2]

Moreover, the defendant's further claim that the Assistant D.A. reneged on his promise, made months after her plea, that he would agree to vacate her plea on the unlawful possession charge, is irrelevant since the plea had already been entered into and the defendant does not claim there were any unfulfilled promises made to induce her to plead guilty.

The court finds that the defendant has not raised any allegations which would entitle her to vacate the judgment under CPL 440.10(1)(h). The defendant's motion to vacate the judgment is therefore denied.

This constitutes the Decision and Order of this Court.

Dated:May 22, 2006

Mount Vernon, New York

_______________________

HON. ADAM SEIDEN

Associate City Judge of Mount Vernon



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