People v. Ottey

People v Ottey (2019 NY Slip Op 06515) People v Ottey 2019 NY Slip Op 06515 Decided on September 11, 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 September 11, 2019 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department REINALDO E. RIVERA, J.P. JEFFREY A. COHEN JOSEPH J. MALTESE VALERIE BRATHWAITE NELSON, JJ. 2018-07286 (Ind. No. 8761/15) [*1]The People of the State of New York, respondent, v Dwayne Ottey, appellant. Paul Skip Laisure, New York, NY (Isa Chakarian and Iskuhi Grigoryev of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Joyce Slevin of counsel), for respondent. DECISION & ORDER Appeal by the defendant, by permission, from an order of the Supreme Court, Kings County (Danny K. Chun, J.), dated May 30, 2018, which denied, without a hearing, his motion pursuant to CPL 440.10 to vacate a judgment of conviction of the same court rendered March 9, 2016, convicting him of criminal possession of stolen property in the third degree, upon his plea of guilty, and imposing sentence. ORDERED that the order is affirmed. In 2015, the defendant, a citizen of Jamaica, who had been brought into this country illegally when he was 22 months old, and his codefendant, were charged with 30 counts of criminal possession of a forged instrument in the second degree, 2 counts of criminal possession of forgery devices, and 5 counts of petit larceny in connection with the possession of forged and blank Target RED cards. The defendant was also charged in a separate indictment with grand larceny in the third degree and attempted grand larceny in the third degree in connection with the purchase of merchandise using stolen account information. The two indictments were later consolidated. At the plea proceeding, defense counsel stated on the record that he had advised the defendant that the crimes of grand larceny in the third degree and criminal possession of a forged instrument in the second degree, as charged in the indictments, constituted aggravated felonies. Counsel stated that conviction of those crimes would result in mandatory deportation and be a permanent bar to reentry into the United States and to obtaining a green card or citizenship. Counsel also stated that he had explained to the defendant that the defendant's best alternative would be to plead guilty to criminal possession of stolen property in the third degree, which was not an aggravated felony. Counsel also advised the defendant that pleading guilty to that crime would nevertheless still carry immigration consequences, in that the defendant could not seek to cancel removal proceedings if apprehended by Immigration and Customs Enforcement (hereinafter ICE). Counsel then proceeded to advise the defendant in the presence of the court that if the defendant married his longtime girlfriend, with whom he shares two children, all of whom are United States [*2]citizens, ...

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