On June 20, 2000, judgment was entered against the defendant in Supreme Court, Bronx County (Quattrochi, J.), convicting him upon his plea of guilty to attempted criminal sale of a controlled substance in the third degree (PL 110/220.39[1]). Upon his conviction, defendant was sentenced to a maximum term of five years probation.

On July 25, 2010, the United States Immigration and Customs Enforcement, United States Department of Homeland Security ("ICE") issued defendant a Notice to Appear ("NTA") for removal proceedings, charging him with being subject to removal from the United States pursuant to sections 212(a)(2)(A)(i)(II), 212(a)(2)(C) and 212(a)(6)(A)(i) of the Immigration and Nationality Act.

Defendant now moves pursuant to CPL 440.10(1)(h) to vacate his conviction on the ground that his plea was not knowingly and voluntarily entered in that trial counsel neglected on several occasions to adequately advise him of the immigration consequences of his guilty plea. In the alternative, defendant requests a hearing to determine whether said judgment should be vacated.

i. Background and Procedural History

Defendant, a native and citizen of the Dominican Republic, unlawfully entered the United States on or about October 21, 1981. On February 29, 2000, defendant was arrested for having sold two plastic bags containing cocaine to an undercover officer in Bronx County. On March 1, 2000, he was arraigned on the charges of criminal sale of a controlled substance in the third [*2]degree (PL 220.39[1]) and criminal possession of a controlled substance in the third degree (PL 220.16[1]). On April 18, 2000, defendant entered a plea of guilty in Supreme Court, Bronx County, to attempted criminal sale of a controlled substance in the third degree. On June 20, 2000, he was sentenced to time served and a period of five years probation. ICE subsequently issued defendant an NTA dated July 25, 2011, alleging that he is removable from the United States.

By motion submitted on March 1, 2011, defendant moves to vacate his conviction in light of Padilla, on the basis that former counsel failed to provide meaningful representation by neglecting to advise him of potential immigration status consequences at the time of his guilty plea. Consequently, defendant argues, his plea was not knowingly or voluntarily entered. He asserts, moreover, that had he been aware his guilty plea would subject him to deportation, he would have proceeded with trial.

The People, in opposing defendant's motion, argue that defendant failed to provide any evidence to substantiate the essential facts set forth in his moving papers and also failed to provide any explanation for the omission. The People note that the defendant's motion rests solely on his self-serving affidavit. Putting aside the questionable application of Padilla to the facts at hand, the People further argue that even if this court were to apply Padilla, defendant's claims would still fail because he is unable to meet the burden required to show ineffective assistance of counsel. The People argue that defendant cannot show that his attorney caused any impediment to the "fairness of the process as a whole" since he has not proven that counsel failed to advise him of the deportation consequences he faced (see People v Benevento, 91 NY2d 708, 714 [1998]). This court agrees.

ii. Defendant's Burden to Allege Issue of Fact

The People argue that defendant's moving papers lack sufficient allegations to substantiate all the essential facts he sets forth in his claim. Under CPL 440.30(4), upon considering the merits of the motion, the court may deny it without conducting a hearing if (b) the motion is based upon the existence or occurrence of facts and the moving papers do not contain sworn allegations substantiating or tending to substantiate all the essential facts, as required by subdivision one; or (d) an allegation of fact essential to support the motion (i) is contradicted by a court record or other official document or is made solely by the defendant and is unsupported by any other affidavit or evidence, and (ii) under these and all the other circumstances attending the case, there is no reasonable possibility that such allegation is true.

A judgment of conviction is presumed valid, and a defendant moving to vacate his conviction bears the "burden of coming forward with sufficient allegations to create an issue of fact" (People v Session, 34 NY2d 254, 255-256 [1974]; People v Braun, 167 AD2d 164, 165 [1st Dept 1990]). Here, defendant has failed to meet this burden. Beyond a self-serving affidavit, defendant could not show that counsel failed to advise him of the deportation consequences he faced. Furthermore, while defendant has managed to recall specific conversations that took place with his attorney, Lawrence Pruzansky, at the time of his plea, he neither provided an affirmation from Mr. Pruzansky substantiating his assertions nor explained his failure to do so. When a motion to vacate a conviction alleging ineffective assistance of counsel is submitted without an affirmation from former defense counsel, such omission is not fatal; however, an omission or a [*3]lack of explanation for the omission may be considered by a court in denying the motion without a hearing (see People v Morales, 58 NY2d 1008 [1983]). Accordingly, defendant's self-serving allegations without any further evidence are insufficient to meet his burden of proving that counsel's performances was ineffective (see People v Ozuna, 7 NY3d 913, 915 [2006] [holding that the failure to submit an affidavit from a corroborating source or to explain the failure to do so warranted summary denial of a CPL 440.10 motion]; People v Stewart, 295 AD2d 249, 250 [1st Dept 2002] [summary denial of defendant's 440.10 motion was proper since his moving papers failed to reveal an issue to be resolved by a hearing.]).

iii. Ineffective Assistance of Counsel Standard

Assuming, arguendo, that defendant satisfied his burden of asserting sufficient factual allegations, which he did not, his ineffective assistance of counsel claim is nevertheless without merit. In order to establish ineffective assistance of counsel under the federal standard, a defendant must demonstrate both the absence of strategic or other legitimate explanations for counsel's conduct and a showing of prejudice (see Strickland v Washington, 466 US 668 [1984]). The relevant tests, then, are whether or not counsel's representation fell "below an objective standard of reasonableness" (Strickland at 688) as judged by the prevailing norms of practice and whether or not, "but for counsel's unprofessional errors, the result of the proceedings would have been different" (Strickland at 694).

According to the New York standard, on the other hand, a defendant need not show prejudice: he may prevail by establishing that his attorney failed to provide meaningful representation by demonstrating "the absence of strategic or other legitimate explanations" for counsel's allegedly deficient representation (People v Caban, 5 NY3d 143, 152, [2005], quoting People v Rivera, 71 NY2d 705 [1988]). Under Article I, § 6, of the New York State Constitution, success of an ineffective assistance of counsel claim rests on whether or not "the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation" (People v Henry, 95 NY2d 563, 565 [2000], quoting People v Baldi, 54 NY2d 137, 147 [1981]; see also People v Satterfield, 66 NY2d 796 [1985]).

Effective assistance of counsel, then, is "meaningful representation" not "perfect representation" (People v Ford, 86 NY2d 397, 404 [1995], quoting People v Modica, 64 NY2d 828, 829 [1985]). In assessing counsel's performance, it is well established law that "[a]ctions or omissions . . . that might be considered sound . . . strategy' do not constitute ineffective assistance" (Brown v US, 167 F3d 109, 110, quoting Strickland at 689, citing Michel v Louisiana, 350 US 91, 101 [1955]). Moreover, hindsight does not transform tactical errors into ineffective assistance of counsel (Baldi, 54 NY2d at 151, citing People v Jackson, 52 NY2d 1027 [1981]). Only errors that seriously compromise a defendant's right to a fair trial warrant a finding of ineffectiveness (People v Hobot, 84 NY2d 1021, 1022 [1995]; see People v Flores, 84 NY2d 184, 188 [1994]; Baldi at 146-147). In the end, a "claim of ineffectiveness is ultimately concerned with the fairness of the process as a whole rather than its particular impact on the outcome of the case" (Caban at 156; People v Benevento, 91 NY2d 708, 714 [1998]; Baldi at 147 [1981]).

Initially, it may appear as if the New York standard neglects a requirement of the federal [*4]standard: according to the former, the "particular impact [of the attorney's advice] on the outcome of the case" is irrelevant (Caban at 156), while the latter takes into account the advice's effect on "the result of the proceedings" (Strickland at 694). However, as Rosario v Ercole indicates, this is only an apparent contradiction: "[f]undamental fairness analysis by its nature must always encompass prejudice" such that under the New York standard the "result of the proceedings" prong in Strickland is effectively redundant (601 F3d 118 at 125 [2d Cir 2010]).

Here, defendant's motion is based on the assertion that defense counsel's failure to advise him of the potential immigration consequences associated with pleading guilty was per se ineffective assistance. As such, he must establish that counsel's allegedly deficient conduct prejudiced him. To do so in a plea bargain context, "the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial" (Hill v Lockhart, 474 US 52, 59 [1985]).

In the context of a guilty plea, a defendant receives meaningful representation when he obtains "an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel" (Ford, 86 NY2d at 404, citing People v Boodhoo, 191 AD2d 448, 449 [2d Dept 1993]), People v Mayes, 133 AD2d 905, 906 [3d Dept 1987]). And once a defendant acquires a favorable plea bargain, "it cannot be concluded that defendant was denied effective assistance of counsel" (People v Black, 247 AD2d 238 [1st Dept 1998], quoting People v Garcia, 235 AD2d 268 [1st Dept 1997]).

Since the performance and prejudice elements set forth in Strickland may be addressed in either order, "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed" (Strickland at 697). Considering that defendant is not a United States citizen, was never a lawful resident, and was never granted lawful entry, it behooves this court to analyze first whether or not the defendant has demonstrated the requisite prejudice.

a. Padilla v. Kentucky

In addition to Strickland, Caban, Benevento and Baldi, this court must consider the role of Padilla v Kentucky in defendant's ineffective assistance of counsel claim. In Padilla, the Supreme Court confirmed that advice regarding the deportation consequences of a criminal conviction may be the subject of a claim for ineffective assistance of counsel under the Sixth Amendment (Padilla v Kentucky, 130 S Ct 1473 [2010]).

The Court in Padilla gave some guidance as to the scope and nature of legal advice that courts should require of practitioners in the immigration context. Padilla, a lawful permanent resident in the United States for over 40 years, pled guilty to drug-distribution charges in Kentucky and faced deportation as a consequence of his conviction (Padilla at 1473). Padilla claimed that his counsel "not only failed to advise him of this consequence prior to entering the plea, but also told him that he did not have to worry about immigration status since he had been in the country so long'" (Padilla at 1478). The Court found that this was "not a hard case" in which to find constitutionally deficient performance: "[t]he consequences of Padilla's plea could easily be determined from reading the removal statute, his deportation was presumptively mandatory, and his counsel's advice was incorrect" (Padilla at 1477). [*5]

The Court concluded that, at least where the "terms of the relevant immigration statute are succinct, clear, and explicit in defining the removal consequence[s] for . . . conviction," constitutionally competent counsel must advise a defendant that his conviction makes him subject to mandatory deportation (Padilla at 1477).

b. Prejudice

At the outset, this court notes that defendant's assertions that he was a lawful resident of the United States when he entered his guilty plea and did not believe it would have any impact on his immigration or resident status is entirely unsupported. In fact, the defendant illegally entered the United States through Florida in 1981 and has since remained here unlawfully. Defendant is not, and has never been, a lawful resident of the United States. Moreover, any individual who unlawfully enters and remains in the United States is presumed to know that such conduct renders him subject to removal (see generally 8 USC 1182[a][6][A][i]; cf Hamburg-American Steam Packet Co. v United States, 250 F 747, 758 [2d Cir 1918] [everyone is presumed to know the law of the land and one's ignorance of it provides no exemption from responsibility to it]).

It is axiomatic, then, that the defendant was subject to deportation well in advance of entering his guilty plea and nothing presented to this court indicates or remotely suggests that the deportation proceeding against him is predicated exclusively on the instant conviction.^[FN1] Thus, defendant's claim that he would have elected to proceed with trial had counsel advised him of the potential immigration consequences of pleading guilty is immaterial. Indeed, even had he gone to trial and been acquitted, he would nevertheless have been subject to removal.

Defendant's claim of ineffective assistance of counsel is also decidedly implausible. The defendant engaged in a narcotics transaction in which he handed an undercover police officer two plastic bags containing quantities of cocaine in return for a sum of pre-recorded United States currency. Such currency was subsequently recovered from him, and a laboratory analysis verified that the substance he provided to the undercover officer was in fact cocaine. Charged with criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, both class B felonies, the defendant would have faced as much as twenty-five years imprisonment if found guilty after trial (PL 70.00[2][b]). Through defense counsel's effort, defendant was permitted to plead guilty to the reduced charge of attempted criminal sale of a controlled substance in the third degree, a class C felony, for which he could have received a maximum of fifteen years imprisonment (PL 70.00[2][c]). Instead, counsel negotiated the extremely favorable sentence of time served and five years probation.

As a direct result of this disposition, defendant completely avoided incarceration. Simply stated, there is no reasonable possibility that defendant would have risked trial, conviction, a lengthy term of imprisonment, and subsequent deportation where probation was available. In light of such an advantageous plea offer, and the lack of evidence of ineffectiveness, defendant [*6]undoubtedly received meaningful representation (see Ford, 86 NY2d at 404; Black, 247 AD2d 238). Accordingly, defendant cannot "convince th[is] court that a decision to reject the plea bargain would have been rational" had he been fully informed of the consequences of his plea (Padilla at 1485). Having failed to do so, defendant is unable to establish prejudice under either the state or the federal standard.

c. Performance

While unnecessary for purposes of this court's determination, it is clear the defendant has failed to establish by a preponderance of the evidence that his attorney, Mr. Pruzansky, did not advise him that pleading guilty would affect his ability to lawfully reside in this country (see CPL 440.30[6]). Defendant's vague, conclusory and wholly unsupported allegation aside, Mr. Pruzansky in his affidavit states that, although he has no independent recollection of his conversations with the defendant, his notes regarding this matter indicate:

After discussing this case with the defendant on several occasions, each time with the assistance of a Spanish interpreter, and based on the strength of the People's case . . . , he decided that pleading guilty was the best decision in the instant case (see People's Exhibit 3, Paragraph 7).

Regarding defendant's claim that Mr. Pruzansky failed to advise him of the potential immigration consequences, Mr. Pruzansky further stated:

that allegation is false. It has been and still is my practice to advise non-citizens of possible deportation ramifications of their plea. In fact, my notes indicate that I asked defendant about his immigration status and he informed me that he had a "green card" but had lost it. . . . [S]ince defendant was a non-citizen, I am certain that I advised him that a plea carried the risk of deportation. Furthermore, defendant, who, at the time, had two warrants from Florida, told me that he only had two concerns: (a) avoid extradition to Florida; and (b) avoid jail time in the instant case. Defendant said that, as long as he received probation, he would worry about any and all future consequences of the plea if and when they actually arise (see People's Exhibit 3, Paragraph 8).

Mr. Pruzansky's recollection appears well supported by his file notes made contemporaneously with their discussions. This court also finds it compelling that he has been a practicing criminal defense attorney for twenty-seven years, during which time he has been the attorney of record in approximately four thousand cases, more than seven hundred fifty of which involved narcotics. His position is only bolstered by defendant's own claim that he told Mr. Pruzansky he was a lawful permanent resident of the United States. It is likely, then, that an attorney with Mr. Pruzansky's experience would advise non-citizen clients on deportation issues, especially when a client specifically broaches the subject as defendant claims he did. Accordingly, there is every reason to believe Mr. Pruzansky provided proper and sound advice concerning the risk of deportation by pleading guilty.

v. Conclusion

For the reasons stated, this court finds that, in fact, the defendant received effective assistance at all stages of the proceedings (see People v Ford, 86 NY2d 397, 404 [1995]; see also Strickland v Washington, 466 US 668). Therefore, the defendant's motion to vacate his judgment [*7]

of conviction pursuant to CPL 440.10(1)(h) is in all respects denied.

This constitutes the decision and order of the court.

Dated:June 23, 2011

________________________________Richard Lee Price, J.S.C.