People v Lopez-Alvarado (2021 NY Slip Op 03198) People v Lopez-Alvarado 2021 NY Slip Op 03198 Decided on May 19, 2021 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on May 19, 2021 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department CHERYL E. CHAMBERS, J.P. ROBERT J. MILLER FRANCESCA E. CONNOLLY VALERIE BRATHWAITE NELSON, JJ. 2014-10213 (Ind. No. 1157/12) [*1]The People of the State of New York, respondent, vReynaldo Lopez-Alvarado, appellant. Christopher J. Cassar, Huntington, NY, for appellant. Timothy D. Sini, District Attorney, Riverhead, NY (Grazia DiVincenzo of counsel), for respondent. DECISION & ORDER Appeal by the defendant from a judgment of the County Court, Suffolk County (John J. Toomey, J.), rendered October 25, 2013, convicting him of attempted assault in the second degree, upon his plea of guilty, and imposing sentence. By decision and order dated April 19, 2017, this Court remitted the matter to the County Court, Suffolk County, to afford the defendant an opportunity to move to vacate his plea of guilty, and thereafter for the submission of a report by the County Court on any such motion, and the appeal was held in abeyance in the interim (see People v Lopez-Alvarado, 149 AD3d 981). The County Court has filed its report. ORDERED that the judgment is affirmed. In a decision and order dated April 19, 2017, this Court remitted the matter to the County Court, Suffolk County, to afford the defendant an opportunity to move to vacate his plea of guilty based on the failure of the County Court to advise the defendant of the possibility of deportation as a consequence of his plea as required by People v Peque (22 NY3d 168) (see People v Lopez-Alvarado, 149 AD3d 981). At a hearing upon remittitur, defense counsel indicated that no such motion would be forthcoming. In a report to this Court dated August 28, 2020, the County Court noted that the defendant had not taken the opportunity to move to vacate his plea following this Court's April 19, 2017 decision and order, and that there was no further action to be taken. Since the defendant declined to move to vacate his plea of guilty on the basis of the County Court's failure to advise him of the possibility of deportation, there is no basis to vacate the plea and to reverse the judgment of conviction on this ground (see People v Arana, 187 AD3 1033, 1034; People v Kostyk, 186 AD3d 744, 745; People v El Hor, 173 AD3d 892, 892-893). The defendant also contends that his counsel was ineffective for failing to inform him of the deportation consequences of his plea of guilty (see Padilla v Kentucky, 599 US 356). Since the record does not conclusively demonstrate that the defendant's attorney failed to inform him of the immigration consequences of his plea, the defendant's claim …
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