        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
