People v. Achouatte
| Decision Date | 12 January 2012 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Jihad ACHOUATTE, Appellant. |
| Court | New York Supreme Court — Appellate Division |
2012 N.Y. Slip Op. 00135
91 A.D.3d 1028
936 N.Y.S.2d 384
The PEOPLE of the State of New York, Respondent,
v.
Jihad ACHOUATTE, Appellant.
Supreme Court, Appellate Division, Third Department, New York.
Jan. 12, 2012.
[936 N.Y.S.2d 384]
Salvatore C. Adamo, Albany, for appellant.
Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport of counsel), for respondent.
Before: SPAIN, J.P., MALONE JR., STEIN, McCARTHY and EGAN JR., JJ.
EGAN JR., J.
[91 A.D.3d 1028] Appeal, by permission, from an order of the County Court of Warren County (Hall Jr., J.), entered August 9, 2010, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment convicting him of the crime of criminal possession of a controlled substance in the fourth degree, without a hearing.
In full satisfaction of a four-count indictment, defendant, a Moroccan citizen, waived his right to appeal, pleaded guilty to criminal possession of a controlled substance in the fourth degree and thereafter was sentenced to the agreed-upon prison term of three years followed by two years of postrelease supervision. Defendant subsequently filed this pro se motion pursuant to CPL 440.10 contending, insofar as is relevant to this appeal, that his plea was involuntary and that he was denied the effective assistance of counsel due to counsel's alleged failure to properly advise him of the potential immigration consequences of his plea. County Court denied defendant's motion without a hearing and, with this Court's permission, defendant now appeals.
We affirm. Inasmuch as defendant alleges that he would not have
[936 N.Y.S.2d 385]
pleaded guilty but for counsel's purported misrepresentations[91 A.D.3d 1029] regarding defendant's immigration status, defendant's ineffective assistance of counsel claim impacts the voluntariness of his plea and, hence, survives his otherwise valid waiver of the right to appeal ( see People v. Williams, 72 A.D.3d 1347, 1348, 899 N.Y.S.2d 438 [2010]; People v. Marshall, 66 A.D.3d 1115, 1116, 887 N.Y.S.2d 308 [2009] ). Although properly before us, defendant's assertion that defense counsel “failed to investigate the immigration consequences associated with the proposed plea” and affirmatively misrepresented that defendant “did not have to worry about his immigration status” nonetheless is belied by the record as a whole. Accordingly, County Court properly denied defendant's motion without a hearing.
Although the parties make scant reference to the relevant...
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...1473, 176 L.Ed.2d 284 is not barred by his appeal waiver because it affects the voluntariness of his plea ( see People v. Achouatte, 91 A.D.3d 1028, 1029, 936 N.Y.S.2d 384,cert. denied––– U.S. ––––, 133 S.Ct. 216, ––– L.Ed.2d ––––, 2012 WL 2154904, 2012 U.S. LEXIS 6084;see also People v. Yo......
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...of record and contained in the sworn pleadings. Therefore, a hearing is not required. SeeCPL 440.30(4)(d) and People v. Achouatte, 91 A.D.3d 1028, 936 N.Y.S.2d 384 (3d Dept 2012). Based on the foregoing reasoning and analysis, the Court finds that the defendant has not satisfied the criteri......
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