People v Martinez (2020 NY Slip Op 00252) People v Martinez 2020 NY Slip Op 00252 Decided on January 14, 2020 Appellate Division, First Department Renwick, J.P., J. 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 January 14, 2020 SUPREME COURT, APPELLATE DIVISION First Judicial Department Dianne T. Renwick,J.P. Judith J. Gische Angela M. Mazzarelli Peter H. Moulton,JJ. 1544/07 10545 [*1]The People of the State of New York, Respondent, vAngel Martinez, Defendant-Appellant. Defendant appeals from an order of the Supreme Court, New York County (Patricia Nuñez, J.), entered on or about June 27, 2018, which denied his CPL 440.10 motion to vacate a June 19, 2007 judgment of conviction. Lauriano Guzman, Jr., Bronx, for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Nicole Coviello and Sheila L. Bautista of counsel), for respondent. RENWICK, J.P. In April 2007, defendant Angel Martinez, along with his cousin, was arrested and charged with criminal possession of a controlled substance in the third and fourth degrees. The charges stemmed from allegations that the police found drugs in a van that Martinez drove and that his cousin rode in as a passenger. The charges against the cousin were dismissed in 2011, when, at a suppression hearing, the arresting officer had no recollection of the events leading up to the discovery of the drugs and the arrest. As for Martinez, he waived indictment, a few weeks after his arrest, and pleaded guilty to criminal possession of a controlled substance in the fourth degree in exchange for a sentence of probation to be served in Massachusetts. At the time of his plea and sentence, Martinez, who was a permanent resident but not a citizen of the United States, resided with his three children and their mother in Massachusetts. At the time of his arrest, Martinez and his immediate family were temporarily in New York City visiting his family. In March 2017, Martinez moved to vacate his 2007 conviction pursuant to CPL 440.10, [*2]on the ground that his attorney was ineffective for failing to adequately advise him of the true immigration consequences of his 2007 guilty plea. Specifically, prior to the guilty plea, counsel advised Martinez that the crime to which he was pleading guilty subjected him to deportation but that it was possible that his deportation "would not be compulsory"; and that "if [he] did not get in trouble during his probation, [he] should not worry at all." Counsel never advised Martinez that he was pleading guilty to an aggravated felony that subjected him to mandatory deportation (see Padilla v Kentucky, 559 US 356, 367-369 [2010], citing 8 USC 1 § 227[a][2][b][1]; see also People v McDonald, 1 NY3d 109, 113-115 [2003]; People v Mebuin, 158 AD3d 121, 126 [1st Dept 2017]; People v Doumbia, 153 AD3d 1139, 1140 [1st Dept 2017]). Supreme Court held a hearing on the CPL 440.10 motion. Martinez testified that ...
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