Majority
Appeal, by permission, from an order of the County Court of Albany County (Herrick, J.), entered August 12, 2014, which denied defendant’s motion pursuant to CPL 440.10 to vacate a judgment convicting her of the crime of rape in the third degree, without a hearing.
Defendant, a native of Jamaica with permanent residence status in the United States, pleaded guilty to rape in the third degree and was sentenced to 10 years of probation. More than a decade later, after deportation proceedings were initiated against her based upon her rape conviction, defendant moved to vacate the judgment of conviction pursuant to CPL 440.10. Specifically, defendant claimed that she was denied the effective assistance of counsel and that her plea was not knowing and voluntary because her attorney did not inform her of the deportation consequences of her guilty plea — and in fact affirmatively misadvised her in that regard — and failed to investigate her mental health condition and possible defenses related thereto. County Court denied the motion without a hearing, and defendant now appeals by permission.
County Court properly denied a hearing on that aspect of defendant’s motion concerning counsel’s failure to inquire into her competency and mental health issues. In support of her claim that counsel was deficient in that regard, defendant submitted a psychological evaluation performed more than a decade after she entered the plea, in which a psychologist expressed her belief that defendant was not “fully able to meaningfully understand the consequences of her plea bargain” because she suffered from paranoid schizophrenia. It is undisputed, however, that defendant had not yet been diagnosed at the time of the plea, and she does not claim that she disclosed her alleged mental health problems to counsel at any time prior thereto. Nor is there anything in the record to suggest that defendant’s ability to understand the proceedings was impaired or that defense counsel should have had any doubts concerning her capacity to enter a knowing and voluntary plea. To the contrary, the plea minutes confirm that defendant actively participated in the colloquy, affirmatively acknowledged that she understood the nature of her rights and the consequences of her plea, answered the court’s questions intelligently and demonstrated a clear and coherent recollection of the events surrounding the crime to which she was pleading. Under these circumstances, counsel’s failure to
Defendant’s claim that counsel was ineffective for failing to advise her of the deportation consequences of her plea is grounded upon the rule enunciated in Padilla v Kentucky ( 559 US 356 , 368-369 [2010]), which was decided after defendant’s conviction became final and has no retroactive application to this appeal (see Chaidez v United States, 568 US —, —, 133 S Ct 1103 , 1105 [2013]; People v Baret, 23 NY3d 777 , 782 [2014], cert denied 574 US —, 135 S Ct 961 [2015]). However, defendant’s distinct claim that counsel affirmatively misinformed her about the plea’s deportation consequences is not dependent upon Padilla; rather, it rests upon established law at the time of her plea that defense counsel’s affirmative misrepresentation to a noncitizen regarding the deportation consequences of a contemplated guilty plea constitutes deficient performance so as to satisfy the first prong of an ineffective assistance of counsel claim (see People v McDonald, 1 NY3d 109 , 111 [2003]; People v Llibre, 125 AD3d 422 , 423 [2015], lv granted 24 NY3d 1121 [2015]; People v Melo-Cordero, 123 AD3d 595 , 595 [2014]; People v Diallo, 113 AD3d 199 , 201 n 2 [2013]; People v Glasgow, 95 AD3d 1367 , 1368 n 2 [2012], lv denied 20 NY3d 1061 [2013]).[1]
In her affidavit in support of the motion, defendant alleged that her counsel advised her that, although immigration authorities would be notified about her guilty plea, “he did not think anything further would happen.” In fact, the crime of rape in the third degree constitutes an “aggravated felony” that results in mandatory deportation (see 8 USC § 1101 [a] [43] [A]; § 1227 [a] [2] [A] [iii]; § 1229b [a] [3]; see also People v Oouch, 97 AD3d 904 , 905 [2012]). Defendant further averred that, had counsel informed her that she was certain to be deported as a result of her guilty plea, she would not have pleaded guilty and would have gone to trial. As defendant sufficiently alleged that counsel provided incorrect information
* A counsel’s performance is deficient under the first prong of the test for evaluating claims of ineffective assistance of counsel when his or her representation falls below an objective standard of reasonableness (see Strickland v Washington, 466 US 668 , 687-688 [1984]; People v Hernandez, 22 NY3d 972 , 974-975 [2013], cert denied 572 US —, 134 S Ct 1900 [2014]; People v McDonald, 1 NY3d at 113 ). The second prong requires a showing of a reasonable probability that the result of the proceeding would have been different but for counsel’s errors (see id.).
McCarthy, Egan Jr. and Rose, JJ., concur. Ordered that the order is reversed, on the law, and matter remitted to the County Court of Albany County for further proceedings not inconsistent with this Court’s decision.
Cases cited
- People v. Mack 90 AD3d 1317 at 1321-1322 p. 1151
- People v. Jenks 69 AD3d 1120 at 1122 p. 1151
- People v. Roberge 293 AD2d 913 at 915 p. 1151
- Padilla v. Kentucky 559 US 356 at 368-369 p. 1151
- Chaidez v. United States 133 S Ct 1103 at 1105 p. 1151
- People v. Baret 23 NY3d 777 at 782 p. 1151
- People v. McDonald 1 NY3d 109 at 111 p. 1151
- People v. Melo-Cordero 123 AD3d 595 at 595 p. 1151
- People v. Diallo 113 AD3d 199 at 201 p. 1151
- People v. Glasgow 95 AD3d 1367 at 1368 p. 1151
- People v. Oouch 97 AD3d 904 at 905 p. 1151
- People v. Reynoso 88 AD3d 1162 at 1163-1164 p. 1152
- People v. Williams 72 AD3d 1347 at 1348 p. 1152
- People v. Marshall 66 AD3d 1115 at 1116 p. 1152
- People v. Martial 125 AD3d 689 at 690 p. 1152