On March 20, 2023, the Defendant through his attorney David Goldbas, Esq., filed the instant motion seeking relief under CPL §440. Mr. Goldbas in his affirmation stated in paragraph 6 "Defendant accepted the plea offer after your undersigned assured him that his plea would not result in deportation. It was my error to advised [sic] Defendant that EWOC is not a deportable offense."

The matter was scheduled for oral argument on March 30, 2023, at which time the People asked for an opportunity to submit a written reply which was granted. The People submitted a written reply on April 13, 2023. The matter was heard again in court on April 17, 2023, with the Defendant appearing virtually from the Buffalo Federal Detention Facility in Batavia, New York, counsel for the Defendant appearing in person, the District Attorney appearing virtually, and the translator appearing virtually. The Court reserved decision and followed up with a letter to counsel the same day. Counsel for the Defendant replied with a letter dated April 20, 2023, and the District Attorney replied on April 24, 2023.

Counsel for the Defendant maintained, among other things, that the Defendant was always concerned about the potential for deportation, that counsel misadvised the Defendant that Endangering the Welfare of a Child was not a deportable offense, and that had the Defendant known the guilty plea would have resulted in deportation that the Defendant would rather take his chances at trial. In defense counsel's letter dated April 24, 2023, counsel stated "There is no appreciable difference between accepting the offer and taking his chances at trial. The one leads to indefinite lockup; the other leads to the possibility of as much as 7 years lockup. Both result in deportation. Under those circumstances, no reasonable person, who had been correctly informed, would have accepted the offer."

The District Attorney essentially argued that the evidence was overwhelming. The possible sentence on Sexual Abuse in the First Degree is a determinate term of up to 7 years with 10 years post-release supervision together with SORA registration and the likelihood of deportation. Although denied by defense counsel, the People referred to a video, which when [*2]the police confronted the Defendant with the same, the Defendant then waived Miranda and gave a sworn incriminating statement. The People argued that based on these circumstances, it would be unreasonable for the Defendant to reject the plea offer.

The Court asked defense counsel if he had obtained an opinion from the Regional Immigration Assistance Center about the potential deportation consequences of a plea. It turns out that a plea to Unlawful Imprisonment the First Degree would be a non-deportable offense. Apparently, counsel had negotiated a plea agreement in that regard as evidenced by defense counsel's letter to the court dated April 4, 2022, when the matter was originally divested to the County Court. Defense counsel did not obtain an opinion about the immigration consequences of an Endangering the Welfare of a Child conviction.

"The Court of Appeals has recognized that, because deportation is so closely related to the criminal process and carries such high stakes for noncitizen defendants, a defense attorney deprives a noncitizen defendant of his or her Sixth Amendment right to the effective assistance of counsel by failing to advise, or by misadvising, the defendant about the immigration consequences of a guilty plea. As a result of such a failure, counsel's representation would fall below an objective standard of reasonableness and thereby satisfy the first prong of the test set forth in Padilla for determining whether a defendant was deprived of his or her constitutional right to the effective assistance of counsel. The second prong of the Padilla test requires a determination of whether there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." People v. Baez-Arias, 203 AD3d 1409, leave to appeal denied, 38 NY3d 1132 [Third Dept, 2022] [internal quotation and citation marks omitted].

Here, counsel admitted that he gave the Defendant incorrect advice about the immigration consequences of his plea. This admission satisfies the first prong of the two part test and is not contested by the People.

This case hinges on "whether there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different" (People v. Baez-Arias, supra). This Court finds that defense counsel provided effective representation to the Defendant. Specifically, defense counsel knew his client had collateral immigration consequences and negotiated a plea offer that could have both kept the client from being deported as well as off the SORA registry. If the Defendant was legitimately concerned about the immigration consequences of a criminal conviction, he could have availed himself of the offer to plea guilty to a guaranteed non-deportable offense. However, the Defendant did not accept that plea offer. Counsel in his April 20, 2023, letter summarizes the Defendant's defense as "'he said, she said' whereby his own credibility would have been tested against the complainant's." The practical reality is that the victim's testimony would be corroborated by the video evidence. If the Defendant were to testify to controvert the victim's testimony, the Defendant would likely be impeached with his own admissions to the allegations. Due to the Defendant's own non-acceptance of a plea to a non-deportable offense combined with the relative unlikely possibility of an acquttal following trial this Court finds that there is no reasonable probability that but for counsel's errors the result of the proceedings would have been different.

Therefore, it is hereby ORDERED:

1. The motion to vacate the Defendant's conviction and sentence under CPL §440.10 is [*3]hereby DENIED.

This is the Decision and Order of the Court.