People v Marroquin (2019 NY Slip Op 06191) People v Marroquin 2019 NY Slip Op 06191 Decided on August 21, 2019 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 August 21, 2019 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department ALAN D. SCHEINKMAN, P.J. REINALDO E. RIVERA JEFFREY A. COHEN SYLVIA O. HINDS-RADIX, JJ. 2018-02822 (Ind. No. 03-00607) [*1]The People of the State of New York, respondent, v Otto Marroquin, appellant. Vincent Gelardi, Rye Brook, NY, for appellant. Anthony A. Scarpino, Jr., District Attorney, White Plains, NY (Lisa M. Denig and William C. Milaccio of counsel), for respondent. DECISION & ORDER Appeal by the defendant, by permission, from an order of the Supreme Court, Westchester County (Susan M. Capeci, J.), dated January 31, 2018. The order granted the People's motion, inter alia, to reinstate an order of the same court dated December 12, 2014, denying the defendant's motion pursuant to CPL 440.10 to vacate a judgment rendered January 8, 2004, convicting him of criminal contempt in the first degree, upon his plea of guilty, and imposing sentence. ORDERED that the order dated January 31, 2018, is affirmed. On November 25, 2003, the defendant, a native of Guatemala, pleaded guilty to criminal contempt in the first degree. He was subsequently sentenced on January 8, 2004. In 2014, the defendant moved pursuant to CPL 440.10 to vacate the judgment of conviction on the ground that he received the ineffective assistance of counsel. The defendant contended that his trial counsel misinformed him that he would not be subject to deportation if he pleaded guilty to criminal contempt in the first degree. In an order dated December 12, 2014, the Supreme Court denied the defendant's motion. Among other things, the court found that the defendant had not demonstrated that he was prejudiced by the alleged inaccurate advice by counsel "because the deportation proceedings against him [we]re not based on his conviction in this case, but have been instituted because he has not been legally admitted to this country." Thereafter, the defendant moved for leave to renew his motion to vacate the judgment of conviction. In support thereof, the defendant asserted that, at the time of the subject conviction, he had a valid work permit that allowed him to remain lawfully in the United States. In an order dated November 15, 2016, the Supreme Court found that, based upon this "new" evidence, the defendant was entitled to a hearing on his motion to vacate the judgment of conviction. The Supreme Court directed the defendant to produce a copy of the work permit that allowed him to be in the United States at the time of his conviction. The defendant, however, did not produce that documentation. The People moved, inter alia, to reinstate the order dated December 12, 2014, denying the defendant's motion to vacate ...
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