PEOPLE v. GO (2022)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law and the matter is remitted to Erie County Court for further proceedings in accordance with the following memorandum: Defendant appeals from an order summarily denying his motion pursuant to CPL 440.10 seeking to vacate a judgment convicting him, upon his plea of guilty, of attempted arson in the third degree (Penal Law §§ 110.00, 150.10 [1]). Defendant, who is not a United States citizen, contends that he was denied effective assistance of counsel under the Federal Constitution based on defense counsel's affirmative misadvice to him regarding the immigration consequences of his guilty plea. In support of the motion, defendant's attorney on the motion averred that defense counsel had given advice that was consistent with an assumption that the crime that defendant was pleading guilty to was a crime of moral turpitude within the meaning of the Immigration and Nationality Act (INA), for which an immigration judge could grant a cancellation of removal, when in actuality defendant was pleading guilty to an aggravated felony under the INA that would almost certainly result in deportation.

Where, as here, a defendant asserts that he or she was denied effective assistance of counsel under the Federal Constitution, he or she must meet the two-part standard set forth in (Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984]). First, the defendant “must show that counsel's representation fell below an objective standard of reasonableness” (id. at 688, 104 S.Ct. 2052). Second, the defendant must show prejudice, i.e., that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different” (id. at 694, 104 S.Ct. 2052). In the plea context, “the defendant must show that there is a reasonable probability that, but for counsel's errors, he [or she] would not have pleaded guilty and would have insisted on going to trial” (Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 [1985]; see People v. Hernandez, 22 N.Y.3d 972, 975, 978 N.Y.S.2d 711, 1 N.E.3d 785 [2013], cert denied 572 U.S. 1070, 134 S.Ct. 1900, 188 L.Ed.2d 930 [2014]).

In (Padilla v. Kentucky, 559 U.S. 356, 363-371, 130 S.Ct. 1473, 176 L.Ed.2d 284 [2010]), the United States Supreme Court applied the Strickland two-part test to a claim of ineffective assistance of counsel based on defense counsel's alleged inadequacy in advising the defendant of the immigration consequences of his guilty plea. The Court held that a defense counsel “ ‘must advise [his or] her client regarding the risk of deportation,’ but the Court also cautioned that counsel's duty ‘is more limited’ where the ‘deportation consequences of a particular plea are unclear or uncertain’ ” (Hernandez, 22 N.Y.3d at 975, 978 N.Y.S.2d 711, 1 N.E.3d 785, quoting Padilla, 559 U.S. at 367, 369, 130 S.Ct. 1473).

At the time defendant pleaded guilty, the Second Circuit had held “that a conviction under New York Penal Law §§ 110[.00] and 150.10 constitutes an aggravated felony ․, rendering an alien ineligible for cancellation of removal” and, after defendant pleaded guilty, the Second Circuit's judgment was affirmed by the United States Supreme Court (Torres v. Holder, 764 F.3d 152, 159 [2d Cir. 2014], affd sub nom. Torres v. Lynch, 578 U.S. 452, 136 S.Ct. 1619, 194 L.Ed.2d 737 [2016]). The People assert that the deportation consequences of defendant's guilty plea were not easily determined by the terms of the applicable federal statute and that it was not until the Second Circuit's judgment was affirmed that it became clear that attempted arson in the third degree, as defined by New York's Penal Law, is an aggravated felony under the INA. When removal consequences are unclear, “a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences” (Padilla, 559 U.S. at 369, 130 S.Ct. 1473; see People v. Castro, 133 A.D.3d 986, 987, 20 N.Y.S.3d 208 [3d Dept. 2015]; People v. Dealmeida, 124 A.D.3d 1405, 1406, 1 N.Y.S.3d 704 [4th Dept. 2015]). Here, however, defense counsel did not simply advise defendant that he may be deported but instead affirmatively misadvised defendant regarding the immigration consequences of his plea by telling defendant that his risk of deportation “diminish[ed]” because “the crime occurred beyond five years of him obtaining his green card.” That was incorrect advice inasmuch as defendant was pleading guilty to a crime that was an aggravated felony under governing federal law (see Torres, 764 F.3d at 159), and he was thus ineligible for cancellation of removal (see 8 USC § 1229b [a] [3]; Torres, 764 F.3d at 155, 159). Where, as here, defense counsel gives incorrect advice regarding the immigration consequences of a guilty plea, that constitutes ineffective assistance under the first prong of Strickland (see Padilla, 559 U.S. at 369, 130 S.Ct. 1473; People v. McDonald, 1 N.Y.3d 109, 114-115, 769 N.Y.S.2d 781, 802 N.E.2d 131 [2003]; People v. Bennett, 139 A.D.3d 1350, 1351, 30 N.Y.S.3d 783 [4th Dept. 2016]), and we thus conclude that County Court erred in concluding otherwise.

With respect to the second prong under Strickland, the People assert, as an alternative ground for affirmance, that defendant failed to make a prima facie showing of prejudice inasmuch as he did not submit an affidavit in support of the motion stating that, but for defense counsel's error, he would not have pleaded guilty (see CPL 440.30 [1] [a]; [4] [b]; People v. Dogan, 37 N.Y.3d 1007, 1007-1008, 152 N.Y.S.3d 674, 174 N.E.3d 699 [2021]; People v. Delorbe, 35 N.Y.3d 112, 121, 125 N.Y.S.3d 327, 149 N.E.3d 20 [2020]). The court, however, did not deny the motion on that ground, and we are thus precluded by (People v. Concepcion, 17 N.Y.3d 192, 194-196, 929 N.Y.S.2d 541, 953 N.E.2d 779 [2011]) from affirming on the ground that defendant failed to sufficiently allege prejudice (see People v. Bailey [Appeal No. 2], 129 A.D.3d 1493, 1495-1496, 12 N.Y.S.3d 412 [4th Dept. 2015]; People v. Abuhamra, 107 A.D.3d 1630, 1630-1631, 968 N.Y.S.2d 294 [4th Dept. 2013], lv denied 22 N.Y.3d 1038, 981 N.Y.S.2d 372, 4 N.E.3d 384 [2013]; People v. Santana, 101 A.D.3d 1664, 1664, 956 N.Y.S.2d 751 [4th Dept. 2012], lv denied 20 N.Y.3d 1103, 965 N.Y.S.2d 799, 988 N.E.2d 537 [2013]).

We therefore reverse the order and remit the matter to County Court for a hearing with respect to prejudice, i.e., whether there is a reasonable probability that, but for counsel's misadvice regarding the immigration consequences of defendant's plea, he would not have pleaded guilty and would have insisted on going to trial.