Is defendant's claim of prejudice in his motion to dismiss the charge that he would have refused to plead guilty and insisted upon going to trial if he had been properly advised of the consequences of his plea?

"New York", United States of America

The following excerpt is from People v. Cristache, 29 Misc.3d 720, 907 N.Y.S.2d 833 (N.Y. Crim. Ct. 2010):

Furthermore, defendant's claim of prejudice is unsupported by, and otherwise largely inconsistent with, his own hearing testimony. First, when defendant was repeatedly asked on direct and cross examination what he would have done differently had he known of the immigration consequences of his plea, defendant simply responded that he would have urged counsel to find a more favorable plea. This, of course, is insufficient to establish prejudice ( see Gargano v. United States, 852 F.2d 886, 891 [7th Cir.1988] [defendant "does not suggest that he is not guilty. He only suggests that he should have had the opportunity to strike a harder bargain with the government. This is not enough to establish prejudice"] ). Indeed, defendant's current counsel completed his direct examination of defendant without defendant ever having testified that he would have refused to plead guilty and would have insisted upon going to trial had he been properly advised regarding the immigration consequences of his plea.

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