People v. Marte-Feliz

• Citation: 144 N.Y.S.3d 255,192 A.D.3d 1397
• Decision Date: 25 March 2021
• Docket Number: 112287
• Parties: The PEOPLE of the State of New York, Respondent, v. Pedro MARTE–FELIZ, Appellant.
• Court: New York Supreme Court — Appellate Division

192 A.D.3d 1397
144 N.Y.S.3d 255

The PEOPLE of the State of New York, Respondent,
v.
Pedro MARTE–FELIZ, Appellant.

112287

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: February 8, 2021
Decided and Entered: March 25, 2021

144 N.Y.S.3d 256

Danielle Neroni Reilly, Albany, for appellant.

P. David Soares, District Attorney, Albany (Emily Schultz of counsel), for respondent.

Before: Egan Jr., J.P., Clark, Aarons, Pritzker and Colangelo, JJ.

MEMORANDUM AND ORDER

Pritzker, J.

Appeal, by permission, from an order of the Supreme Court (McDonough, J.), entered April 21, 2020 in Albany County, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment convicting him of the crime of criminal sale of a controlled substance in the third degree, without a hearing.

In satisfaction of a one-count indictment, defendant, a noncitizen of the United States, pleaded guilty to criminal sale of a controlled substance in the third degree and waived his right to appeal. In accordance with the terms of the plea agreement, he was sentenced to six years in prison, followed by two years of postrelease supervision. He subsequently made an unsuccessful pro se motion pursuant to CPL 440.20 to set aside the sentence. Thereafter, his counsel moved pursuant to CPL 440.10 to vacate the judgment of conviction on the grounds that defendant was denied the effective assistance of trial counsel and that his guilty plea was not knowingly, voluntarily and intelligently entered. Supreme Court denied the motion without a hearing. This Court granted defendant permission to appeal.

Supreme Court did not abuse its discretion in denying defendant's CPL 440.10 motion to vacate the judgment of conviction without a hearing. On a motion to vacate a judgment of conviction under CPL 440.10, "a hearing is only required if the submissions show that the nonrecord facts sought to be established are material and would entitle the defendant to relief" ( People v. Vargas, 173 A.D.3d 1466, 1468, 103 N.Y.S.3d 669 [2019] [internal quotation marks and citations omitted], lv denied 34 N.Y.3d 955, 110 N.Y.S.3d 635, 134 N.E.3d 634 [2019] ; see People v. Stanley, 189 A.D.3d 1818, 1819, 136 N.Y.S.3d 569 [2020] ). Furthermore, "[a] court may deny a vacatur motion without a hearing if it is based on the defendant's self-serving

144 N.Y.S.3d 257

claims that are contradicted by the record or unsupported by any other evidence" ( People v. Vargas, 173 A.D.3d at 1468, 103 N.Y.S.3d 669 ; see People v. Stanley, 189 A.D.3d at 1819, 136 N.Y.S.3d 569 ; People v. Guynup, 159 A.D.3d 1223, 1225, 73 N.Y.S.3d 645 [2018], lv denied 31 N.Y.3d 1082, 79 N.Y.S.3d 104, 103 N.E.3d 1251 [2018] ).

Defendant's primary contention is that he was denied the effective assistance of counsel because trial counsel did not advise him of the immigration consequences of his guilty plea and, thus, his plea was not knowing, intelligent and voluntary. Given that defendant's ineffective assistance of counsel claim impacts the voluntariness of his plea, it is not precluded by his unchallenged waiver of the right to appeal and was preserved by an appropriate postallocution motion (see People v. Manley, 167 A.D.3d 1161, 1162, 89 N.Y.S.3d 763 [2018] ; People v. Achouatte, 91 A.D.3d 1028, 1028–1029, 936 N.Y.S.2d 384 [2012], lv denied 18 N.Y.3d 954, 944 N.Y.S.2d 483, 967 N.E.2d 708 [2012], cert denied 568 U.S. 861, 133 S.Ct. 216, 184 L.Ed.2d 110 [2012] ). Given defendant's status as a resident alien, under federal law his conviction of criminal sale of a controlled substance in the third degree subjected him to deportation (see 8 USC § 1227 [a][2][B][i]; Penal Law § 220.39[1] ; People v. Carty, 96 A.D.3d 1093, 1094, 947...