People v. Hall

Appellate Division of the Supreme Court of New York

People v. Hall

16 A.D.3d 848, 791 N.Y.S.2d 689, 2005 N.Y. App. Div. LEXIS 2644

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 17, 2005

StatusPublished

Cited by9 cases

This text of 16 A.D.3d 848 (People v. Hall) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Hall, 16 A.D.3d 848, 791 N.Y.S.2d 689, 2005 N.Y. App. Div. LEXIS 2644 (N.Y. Ct. App. 2005).

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Opinion

Crew III, J.P.

Appeal, by permission, from an order of the [849]*849County Court of Warren County (Austin, J.), entered July 30, 2003, 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 fifth degree, after a hearing.

Defendant, a citizen of Jamaica, pleaded guilty to criminal sale of a controlled substance in the fifth degree in satisfaction of an indictment charging him with criminal sale of a controlled substance in the third degree. Pursuant to a negotiated plea agreement, defendant waived his right to appeal and was sentenced to six months in jail. Defendant thereafter moved pursuant to CPL 440.10 to vacate the judgment of conviction on the ground that he was denied the effective assistance of counsel. County Court denied the motion, after a hearing, and defendant now appeals with permission from this Court.

Defendant’s waiver of his right to appeal precludes him from asserting ineffective assistance of counsel except to the extent that it may have impacted the voluntariness of his plea (see People v Smith, 301 AD2d 671, 673 [2003], lv denied 99 NY2d 658 [2003]; People v White, 300 AD2d 830, 832 [2002], lv denied 99 NY2d 633 [2003]; People v Ferguson, 192 AD2d 800, 800 [1993], lv denied 82 NY2d 717 [1993]). In this regard, defendant claims that counsel failed to advise him that his guilty plea could result in his deportation to Jamaica. Although counsel’s affirmative misrepresentations regarding deportation or other consequences of a plea may constitute ineffective assistance under certain circumstances, it is well established that counsel’s failure to apprise a defendant of the possibility of deportation— “an act of omission”—does not by itself establish ineffective assistance (People v McDonald, 296 AD2d 13, 18 [2002], affd 1 NY3d 109 [2003]; see People v Ford, 86 NY2d 397, 404-405 [1995]). Accordingly, County Court properly denied defendant’s motion.

Mugglin, Rose, Lahtinen and Kane, JJ., concur. Ordered that the order is affirmed.

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Crew III, J.P.

Appeal, by permission, from an order of the [849]*849County Court of Warren County (Austin, J.), entered July 30, 2003, 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 fifth degree, after a hearing.

Defendant, a citizen of Jamaica, pleaded guilty to criminal sale of a controlled substance in the fifth degree in satisfaction of an indictment charging him with criminal sale of a controlled substance in the third degree. Pursuant to a negotiated plea agreement, defendant waived his right to appeal and was sentenced to six months in jail. Defendant thereafter moved pursuant to CPL 440.10 to vacate the judgment of conviction on the ground that he was denied the effective assistance of counsel. County Court denied the motion, after a hearing, and defendant now appeals with permission from this Court.

Defendant’s waiver of his right to appeal precludes him from asserting ineffective assistance of counsel except to the extent that it may have impacted the voluntariness of his plea (see People v Smith, 301 AD2d 671, 673 [2003], lv denied 99 NY2d 658 [2003]; People v White, 300 AD2d 830, 832 [2002], lv denied 99 NY2d 633 [2003]; People v Ferguson, 192 AD2d 800, 800 [1993], lv denied 82 NY2d 717 [1993]). In this regard, defendant claims that counsel failed to advise him that his guilty plea could result in his deportation to Jamaica. Although counsel’s affirmative misrepresentations regarding deportation or other consequences of a plea may constitute ineffective assistance under certain circumstances, it is well established that counsel’s failure to apprise a defendant of the possibility of deportation— “an act of omission”—does not by itself establish ineffective assistance (People v McDonald, 296 AD2d 13, 18 [2002], affd 1 NY3d 109 [2003]; see People v Ford, 86 NY2d 397, 404-405 [1995]). Accordingly, County Court properly denied defendant’s motion.

Mugglin, Rose, Lahtinen and Kane, JJ., concur. Ordered that the order is affirmed.

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Bluebook (online)

16 A.D.3d 848, 791 N.Y.S.2d 689, 2005 N.Y. App. Div. LEXIS 2644, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-hall-nyappdiv-2005.

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