SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1450 

KA 13-00336 

PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS, AND WHALEN, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

JOSE DEALMEIDA, DEFENDANT-APPELLANT. 

(APPEAL NO. 1.) 

 

LABE M. RICHMAN, NEW YORK CITY, FOR DEFENDANT-APPELLANT. 

SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Oneida County Court (Barry M.

Donalty, J.), rendered March 23, 2012. The judgment convicted

defendant, upon his plea of guilty, of criminal possession of a

controlled substance in the seventh degree. 

It is hereby ORDERED that the judgment so appealed from is

unanimously reversed on the law, the plea is vacated and the matter is

remitted to Oneida County Court for further proceedings on the

indictment. 

Memorandum: In appeal No. 1, defendant appeals from a judgment

convicting him upon his plea of guilty of criminal possession of a

controlled substance in the seventh degree (Penal Law § 220.03). In

appeal No. 2, defendant appeals by permission of this Court from an

order denying his motion pursuant to CPL article 440 seeking to vacate

that judgment. 

With respect to appeal No. 1, we reject defendant’s contention

that the plea was rendered involuntary by County Court’s failure to

advise him of the immigration consequences of the plea. Assuming,

arguendo, that due process required the court to apprise defendant of

the immigration consequences of his misdemeanor plea (see People v

Peque, 22 NY3d 168, 197 n 9), we conclude that the court fulfilled its

obligation during the plea colloquy. The colloquy shows that “the

court assure[d] itself that the defendant kn[ew] of the possibility of

deportation prior to entering [the] guilty plea, [and therefore] the

plea [is] knowing, intelligent and voluntary” (id. at 197). We

likewise reject defendant’s contention that he received ineffective

assistance of counsel based on defense counsel’s alleged failure to

advise him of the immigration consequences of the guilty plea. 

Defense counsel indicated during the plea that there was a “risk of

deportation” (Padilla v Kentucky, 559 US 356, 374). We reject
-2- 1450 

KA 13-00336 

defendant’s contention that defense counsel should have advised

defendant that deportation was “virtually mandatory,” and we conclude

that defendant was not denied effective assistance of counsel on this

ground (see People v Galan, 116 AD3d 787, 789-790; People v Montane,

110 AD3d 1101, 1102, lv denied 22 NY3d 1089).

We agree with defendant, however, that he was denied effective

assistance of counsel based on defense counsel’s failure to move to

suppress the drugs that the police seized from his person during a

traffic stop. In a supporting deposition, a police officer stated

that he stopped defendant’s vehicle after observing defective brake

lights, in violation of Vehicle and Traffic Law § 375 (40). He

observed that defendant was nervous, and defendant gave responses to

questions concerning where he was coming from and where he was going

that did not make sense considering the direction in which he was

traveling. The officer ordered defendant out of the vehicle and asked

him “if he had anything illegal on him,” and defendant responded that

he had “coke” in his pocket. The officer then searched defendant’s

pocket and retrieved what was later determined to be cocaine.

We conclude that defendant established that a motion to suppress

would likely be successful, and that defense counsel had no strategic

or other legitimate explanation for not moving to suppress the

evidence (cf. People v Morris, 117 AD3d 1580, 1581; People v Johnson,

81 AD3d 1428, 1428-1429, lv denied 16 NY3d 896). The officer’s

question whether defendant had anything illegal on him constituted a

level two common-law inquiry, which required a founded suspicion that

criminal activity was afoot (see People v Loretta, 107 AD3d 541, 541,

lv denied 22 NY3d 1157; People v Carr, 103 AD3d 1194, 1195; People v

Lowe, 79 AD3d 1676, 1676, lv denied 16 NY3d 833; see also People v

Garcia, 20 NY3d 317, 324). Defendant’s nervousness and discrepancies

in describing where he was coming from and going are not enough to

give rise to a reasonable suspicion that criminal activity is afoot

(see People v Banks, 85 NY2d 558, 562, cert denied 516 US 868; People

v Milaski, 62 NY2d 147, 156; cf. Lowe, 79 AD3d at 1676-1677; see also

Carr, 103 AD3d at 1195). We further conclude that defendant’s

contention survives his guilty plea inasmuch as defense counsel’s

error infected the plea bargaining process (see generally People v

Atkinson, 105 AD3d 1349, 1350, lv denied 24 NY3d 958). We therefore

reverse the judgment in appeal No. 1, vacate the plea, and remit the

matter to Oneida County Court for further proceedings on the

indictment.

In light of our determination in appeal No. 1, we decline to

review defendant’s remaining contention therein, and we dismiss as

moot defendant’s appeal from the order in appeal No. 2 (see People v

Adams, 15 AD3d 987, 987, lv denied 4 NY3d 851).

Entered: January 2, 2015 Frances E. Cafarell

Clerk of the Court