96 A.D.3d 1168
N.Y. App. Div.2012Background
- Malone, a Guyana native and US lawful permanent resident since 1983, pleaded guilty in 2002 to aggravated unlicensed operation of a motor vehicle in the first degree and driving while intoxicated.
- In 2010, DHS notified removal proceedings commenced based on Malone’s conviction and two prior petit larceny convictions from 1993 and 1999.
- Malone moved pro se under CPL 440.10 to vacate the judgment, arguing ineffective assistance for not informing him of immigration consequences.
- County Court appointed counsel and later denied the motion without a hearing, after supplemental papers were filed.
- The Appellate Division affirmed, concluding the motion was procedurally defective and, even if sufficient, would not have shown prejudice.
- Court held that, regardless of Padilla’s retroactivity, Malone’s deportable status existed due to prior convictions, so counsel’s alleged failure to warn of immigration consequences did not prejudice him.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the CPL 440.10 denial without a hearing was proper | Malone argued ineffective assistance for failing to advise on immigration consequences | State argued motion defective and lack of sworn facts; no prejudice shown even if argued | Affirmed; no hearing required; no prejudice established |
Key Cases Cited
- People v Leonard, 63 A.D.3d 1278 (2009) (CPL 440.30(4)(b) requires sworn allegations)
- People v Murray, 25 A.D.3d 911 (2006) (same procedural requirement for motions under CPL 440.30)
- Marino-Affaitati v. People, 88 A.D.3d 742 (2011) (appellate division discussion on effectiveness and procedures)
- Strickland v. Washington, 466 U.S. 668 (1984) (ineffective assistance standard: deficient performance plus prejudice)
- Padilla v. Kentucky, 130 S. Ct. 1473 (2010) (potential retroactive application to immigration advice)