143 A.D.3d 843
N.Y. App. Div.2016Background
- Defendant Paul Roberts, a lawful permanent resident since 1984, was stopped in 2008, found with marijuana, charged with 1st‑degree criminal possession of marihuana, and pleaded guilty to 2nd‑degree possession on July 1, 2009.
- Sentence: two days jail and five years probation; later deportation proceedings commenced and an order of deportation issued.
- Roberts moved under CPL 440.10 to vacate his conviction, alleging his trial counsel gave incorrect immigration advice that the plea would not result in deportation if jail time was ≤ one year and that Massachusetts authorities would not seek him because the case was in New York.
- Supreme Court denied the motion without a hearing, finding Roberts' affidavit contradicted by the plea allocution and uncorroborated, and alternatively that he suffered no prejudice.
- Appellate Division reversed, holding Roberts' sworn, specific allegations were not contradicted by the prosecutor's general admonition at allocution and that there was a question of fact on prejudice given his long residency, family ties, employment, and sentencing exposure.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendant alleged legally sufficient ineffective assistance based on incorrect immigration advice | People: Allocution's general admonition and lack of corroboration rebut defendant's claim; no reasonable possibility allegations true | Roberts: Counsel told him no deportation risk if sentence ≤1 year and that NY case wouldn't prompt action in Massachusetts; this misinformation led to his plea | Reversed: Specific sworn assertions of counsel's advice not contradicted by general prosecutor admonition; allegations raise reasonable possibility of truth requiring a hearing |
| Whether defendant showed prejudice (would have gone to trial) under Strickland/Hill | People: Even if advice was wrong, defendant not prejudiced — plea/sentencing exposure and record show no reasonable probability he'd avoid plea | Roberts: As a longtime LPR with family and employment, and significant interest in avoiding deportation, it's reasonably probable he would have rejected plea if properly advised | Reversed: Fact question on prejudice given immigration stakes, family ties, employment, and sentencing exposure, so hearing required |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes two‑prong ineffective assistance test: deficient performance and prejudice)
- Hill v. Lockhart, 474 U.S. 52 (applying Strickland to guilty‑plea prejudice inquiry)
- Padilla v. Kentucky, 559 U.S. 356 (counsel must advise on deportation risks; inapplicable retroactively here)
- Chaidez v. United States, 133 S. Ct. 1103 (Padilla not retroactive to convictions final before decision)
- People v. Baret, 23 N.Y.3d 777 (inaccurate immigration advice can be objectively unreasonable under Strickland)
- People v. McDonald, 1 N.Y.3d 109 (pre‑Padilla recognition that erroneous immigration advice may be deficient)
- People v. Pinto, 133 A.D.3d 787 (specific attorney assurances not necessarily negated by general allocution admonitions)
- People v. Picca, 97 A.D.3d 170 (immigration consequences and personal circumstances relevant to prejudice analysis)
- People v. McKenzie, 4 A.D.3d 437 (similar prejudice inquiry where deportation risk central)