People v. AbdallahPeople v. Abdallah
Appeal by the defendant, by permission, from an order of the Supreme Court, Queens County (Blumenfeld, J.), dated August 21, 2015, which, after a hearing, denied his motion pursuant to CPL 440.10 to vacate a judgment of the same court rendered March 21, 2013, convicting him of grand larceny in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the order is reversed, on the law, the defendant‘s motion to vacate the judgment is granted, and the matter is remitted to the Supreme Court, Queens County, for further proceedings on the indictment.
The defendant, a citizen of Barbados, pleaded guilty to grand larceny in the second degree in exchange for a sentence of six months’ incarceration, concurrent with five years of probation. The Supreme Court subsequently imposed sentence on March 21, 2013, in accordance with the terms of the plea agreement. The defendant did not take a direct appeal from the judgment, and his time to do so has expired. In April 2014, the United States Department of Homeland Security, Department of Immigration and Customs Enforcement, commenced removal proceedings to deport the defendant to Barbados, and he was placed in detention at the Hudson County jail in New Jersey.
Thereafter, the defendant moved pursuant to CPL 440.10(1)(h) to vacate the judgment of conviction, alleging that defense counsel affirmatively misrepresented the immigration consequences of his plea of guilty. In support of the motion, the defendant submitted an affidavit in which he stated that defense counsel advised him that a plea of guilty to grand larceny in the second degree would not affect his right to request cancellation of removal, and that had he known he would not be allowed to apply for cancellation of removal, he would not have pleaded guilty. The defendant also submitted defense counsel‘s affirmation in which he stated that he had consulted with an attorney with the Immigration Defense Project, who informed him that the defendant would be eligible to apply for and receive a cancellation of removal. Defense counsel further stated that, prior to the defendant‘s plea, he informed the defendant that, based on his conversation with that attorney, the defendant could apply for cancellation of removal. At a hearing on the motion, the defendant
A defendant has the right to the effective assistance of counsel before deciding whether to plead guilty (see
In Padilla v Kentucky (559 US at 356), the United States Supreme Court determined that, due to the unique nature of deportation, criminal defense counsel has a duty to inform a defendant whether a plea of guilty carries a risk of deportation. Where the deportation consequences of a particular plea are unclear or uncertain, because the law “is not succinct and straightforward . . . a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences” (id. at 369; see People v West, 150 AD3d 901; People v Marino-Affaitati, 88 AD3d 742, 744). However, where the terms of the relevant immigration statute are “succinct, clear, and explicit” in defining the removal consequences of the conviction, and counsel could have “easily determined [them] . . . simply from reading the text of the statute,” counsel has a “duty to give correct advice” as to the immigration consequences of the plea (Padilla v Kentucky, 559 US at 368-369). Thus, where an attorney fails to advise a criminal defendant, or misadvises the defendant, regarding clear removal consequences of a plea of guilty, the representation falls below an objective standard of reasonableness (id.; see People v Picca, 97 AD3d 170, 178; see also People v McDonald, 1 NY3d 109, 115; People v Roberts, 143 AD3d 843, 844-845).
Here, defense counsel incorrectly advised the defendant that his plea of guilty to grand larceny in the second degree would preserve his eligibility to apply for a cancellation of removal, when, in fact, his conviction constituted an aggravated felony, rendering him mandatorily deportable and ineligible for cancellation of removal (see
Contrary to the Supreme Court‘s further determination, the defendant also established that he was prejudiced by the court‘s error, in that there was a reasonable probability that the
” In light of the primary importance that aliens may place upon avoiding exile from this country,’ in assessing prejudice under the second prong of the Strickland test, the court must weigh not only the strength of the People‘s evidence and the potential sentence a defendant faces if convicted after trial, but also, the particular circumstances informing the defendant‘s desire to remain in the United States‘” (People v Roberts, 143 AD3d at 845, quoting People v Picca, 97 AD3d at 183-184). Here, although the People asserted that the evidence against the defendant was strong, and the defendant faced a lengthy aggregate sentence should his attempts at negotiation of a different plea agreement have failed, the defendant was focused on the immigration consequences of his plea and had a large incentive to negotiate a plea agreement that did not affect his immigration status or that at least preserved his eligibility for cancellation of removal, such as pleas of guilty to both counts of criminal possession of stolen property in the second degree charged against him in the indictment (see People v Picca, 97 AD3d at 183-184). The defendant was 62 years old with health issues and had been in the country for 25 years. He had been married to a United States citizen for over 20 years, who suffered from multiple sclerosis, and had two children who are citizens of the United States.
“A reasonable probability is a probability sufficient to undermine confidence in the outcome” (Strickland v Washington, 466 US at 694; see Hinton v Alabama, 134 S Ct 1081, 1089). Given the circumstances here, including the defendant‘s focus on the immigration consequences of his plea, his large incentive to negotiate a plea which did not render him mandatorily deportable without eligibility for relief, the possibility of offering the People such a plea with the same sentence or even a longer aggregate sentence, and the fact that the prosecutor was unconcerned with the immigration consequences of the plea, the defendant established a reasonable probability that he could have negotiated a plea agreement that did not impose mandatory deportation without eligibility for relief (see Kovacs v U.S., 744 F3d at 53 [2nd Cir]; People v Picca, 97 AD3d at 183-184). Thus, the defendant established the requisite prejudice from counsel‘s misadvice under Strickland, and further that counsel‘s error was “egregious and prejudicial” such that it denied him meaningful representation under the New York Constitution (People v Benevento, 91 NY2d at 713 [internal quotation marks omitted]).
Accordingly, the defendant‘s motion pursuant to CPL 440.10(1)(h) to vacate the judgment should have been granted. Since vacatur of the judgment under these circumstances necessarily includes vacatur of the defendant‘s plea, we remit the matter to the Supreme Court, Queens County, for further proceedings on the indictment.
HALL, J.P., ROMAN, COHEN and BARROS, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court