People v. Picoa
97 A.D.3d 170
| N.Y. App. Div. | 2012Background
- defendant pleaded guilty in 2001 to attempted criminal sale of a controlled substance under DTAP; immigration detainer later impeded further treatment
- Padilla v Kentucky established a duty to advise on immigration consequences; pre-Padilla law treated removal as collateral
- defendant and wife alleged counsel never advised of removal consequences; sentencing attorney corroborated lack of advice
- prior conviction included a drug-related offense with possible removal, but not mandatory removal at time of plea for the prior conviction
- AEDPA/IIRIRA changes affected availability of discretionary relief from removal; court analyzes whether relief would have been possible under law then
- Supreme Court of Kings County reversed summary denial and remitted for an evidentiary hearing on ineffective assistance related to immigration consequences
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counsel's failure to advise on immigration consequences violated the Sixth Amendment | Padilla requires advice on removal risks; defendant alleged no such advice | Defendant's counsel failed to inform him of removal consequences before pleading | Preliminary showing of deficient performance established; hearing required |
| Whether the prejudice prong was satisfied given the immigration consequences | A rational decision to reject the plea could have been made if removal risk was known | Remain knowledgeable of immigration consequences would have made trial rational | Defendant plausibly alleged that rejecting the plea could be rational; prejudice shown |
| Whether the prior removal-related issues and AEDPA/IIRIRA changes affect the prejudice assessment | Statutory context could negate relief or diminish prejudice findings | Law at time of plea did not provide discretionary relief; still prejudice can be shown | Court considers particular circumstances; cannot conclude no prejudice as a matter of record |
| Whether the DTAP program fulfillment and post-plea treatment affect the plea validity | Adequate treatment promised as part of the DTAP plea was not provided | Residential treatment provided; some relapse does not void the bargain | Remand for evidentiary hearing on treatment-related aspects as part of the effective counsel inquiry |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong standard for ineffective assistance)
- Roe v. Flores-Ortega, 528 U.S. 470 (U.S. 2000) (defining right to effective assistance at trial)
- Hill v. Lockhart, 474 U.S. 52 (U.S. 1985) (prepleading prejudice standard for guilty pleas)
- Padilla v. Kentucky, 559 U.S. 356 (U.S. 2010) (duty to inform noncitizens of immigration consequences of guilty pleas)
- INS v. St. Cyr, 533 U.S. 289 (U.S. 2001) (availability of discretionary relief from removal under prior law)
- Orocio, 645 F.3d 630 (2d Cir. 2011) (rationality of rejecting plea in Padilla context)
- Khan v. Ashcroft, 352 F.3d 521 (3d Cir. 2003) (AEDPA 440(d) application to removal and relief)