186 A.D.3d 422
N.Y. App. Div.2020Background
- Defendant Gomez pleaded guilty to attempted criminal possession of a weapon in the second degree and was sentenced to two years.
- At plea allocution the court warned noncitizens about possible immigration consequences; defense counsel told the court he had discussed “all possible consequences” and that “we've looked into everything,” and declined more time to research immigration effects.
- The crime to which Gomez pleaded is an aggravated felony under federal immigration law and, the dissent argued, would subject a noncitizen to virtually certain/mandatory deportation.
- Gomez appealed, arguing ineffective assistance of counsel under Padilla v. Kentucky for failure to advise that the plea carried mandatory deportation consequences.
- The Appellate Division (majority) affirmed, holding the record does not irrefutably establish counsel misadvised and that the claim must be developed in a CPL 440.10 postconviction proceeding; a dissent would have reversed.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Gomez) | Held |
|---|---|---|---|
| Whether counsel was ineffective under Padilla for not advising that the plea would lead to mandatory deportation | Counsel’s on-record statements show he discussed consequences with defendant; record does not irrefutably show misadvice | Counsel told defendant only about “possible” consequences and thus failed to inform him of the virtually certain mandatory deportation | Not decided on the merits; claim unreviewable on direct appeal because record does not irrefutably establish ineffectiveness; CPL 440.10 required |
| Whether counsel’s on-the-record statements that he discussed “all possible consequences” suffice to establish ineffectiveness on direct appeal | Those statements are general and consistent with both accurate and inaccurate advice; they do not conclusively show a Padilla violation | The “possible consequences” phrasing, when deportation was virtually certain, irrefutably shows misadvice and ineffective assistance | Majority: statements do not irrefutably demonstrate ineffective assistance; Dissent: statements are sufficient and would warrant reversal |
| Whether a postconviction CPL 440.10 motion is required to develop the record for a Padilla claim | A 440.10 motion is the proper vehicle because factual issues about counsel’s advice typically lie dehors the record | Argues the plea colloquy already establishes counsel’s misadvice so direct appeal review is appropriate | Majority: require CPL 440.10 to develop facts; Dissent: direct review is appropriate here |
Key Cases Cited
- People v McLean, 15 NY3d 117 (N.Y. 2010) (direct appeal review of ineffectiveness requires record that irrefutably establishes violation)
- Padilla v. Kentucky, 559 U.S. 356 (2010) (counsel must advise noncitizen defendants of clear deportation consequences)
- People v Peque, 22 NY3d 168 (N.Y. 2013) (Padilla-based claims often require CPL 440.10 postconviction motion to develop record)
- People v Nesbitt, 20 NY3d 1080 (N.Y. 2013) (direct-appeal findings of ineffectiveness are "exceptional")
- People v Bell, 48 NY2d 933 (N.Y. 1979) (direct appeal review limited to cases where record establishes clear ineffectiveness)
- People v Disla, 173 AD3d 555 (1st Dep't 2019) (First Department cases treating counsel’s "possible consequences" language as misadvice when deportation is virtually certain)
- People v Doumbia, 153 AD3d 1139 (1st Dep't 2017) (describing deportation as a "virtual certainty" in aggravated-felony plea contexts)