Lead Opinion
Appeal from judgment, Supreme Court, New York County (Renee A. White, J.), rendered April 2, 2013, as amended September 11, 2013, convicting defendant, upon his plea of guilty, of attempted robbery in the second degree, and sentencing him to a term of two years, held in abeyance, and the matter remanded for further proceedings in accordance herewith.
The existing, unexpanded record is sufficient to establish that defendant received ineffective assistance of counsel. Defendant was deprived of effective assistance when his counsel failed to advise him that his guilty plea to an aggravated felony would result in mandatory deportation. Since an aggravated felony results in mandatory deportation (see People v Corporan,
The dissent misses the point. Contrary to the dissent’s assertion, defendant’s “unique circumstances” do not change the fact that defendant was subject to mandatory deportation. Lawyers have an affirmative duty to adequately inform their clients about the serious effects of criminal convictions to the extent, and with as much specificity, as possible. Once a defense attorney determines that a client is not a U.S. citizen, the attorney is required to implement the Sixth Amendment protection to which noncitizen defendants are entitled. As Padilla v Kentucky (
In this case, the dissent cannot, and does not, argue that the immigration consequences of defendant’s guilty plea to an aggravated felony were truly clear. Instead, the dissent excuses defense counsel’s nebulous advice because “it is unclear from the record whether counsel’s strategy included pursuing youthful offender status to avoid removal.” The dissent also excuses defense counsel’s vague advice because defense counsel may have been pursuing other strategy for avoiding the virtual certainty of deportation. In essence, what the dissent proposes is that since there may be avenues available for avoiding even certain deportations, defense counsel only has a duty to inform a noncitizen that there is a risk or possibility that he or she may be deported. Such a standard would not only seriously undermine the Sixth Amendment protection to which nonciti-zen defendants are entitled, but would also conflict with the concept of a truly informed plea agreement (see Padilla at 373-374 [“In sum, we have long recognized that the negotiation of a plea bargain is a critical phase of litigation for purposes of the Sixth Amendment right to effective assistance of counsel”]; see generally Strickland v Washington,
On remand, defendant should be afforded the opportunity to move to vacate his plea upon a showing that there is a “reasonable probability” that he would not have pleaded guilty had he been made aware of the deportation consequences of his plea (see People v Peque,
Dissenting Opinion
dissents in a memorandum as follows: In order to properly review defendant’s ineffective assistance claim, a CPL 440.10 motion is needed to establish additional information regarding defense counsel’s advice and strategy as to the immigration consequences of defendant’s plea agreement. Accordingly, I respectfully dissent.
Defendant’s claim that his attorney rendered ineffective assistance by providing inaccurate or misleading advice about the immigration consequences of his plea is unreviewable on direct appeal because it involves matters not reflected in, or fully explained by, the record (see People v Peque,
In any event, the brief interchange between the attorney and the plea court about whether defendant “could be deported” does not necessarily establish ineffective assistance under Padilla v Kentucky (
The majority ignores the uncertain nature of immigration proceedings and sets forth an impossible standard for counsel given the circumstances in this case. The record establishes that the court and counsel advised defendant that he could be deported should he plead guilty to these crimes. A more fully fleshed out record is needed to determine what else counsel specifically advised the defendant off-the-record and what the immigration attorney may have advised him before he pleaded guilty. However, since counsel potentially knew that the CAT, youthful offender treatment, or 8 USC § 1231 (b) (3) (A) could help defendant avoid deportation, on this record it cannot be expected that counsel would advise defendant it was certain that he would be deported. Indeed, to the contrary, it was not a virtual certainty that defendant would be deported since his age and family circumstances presented the unique aforementioned avenues of relief from deportation. This reality is made clear by the fact that although defendant was released from prison in 2014 he remains in the United States, having been released from ICE detention and placed on postrelease supervision.
Thus, while the crime to which defendant pleaded guilty may have made him presumptively deportable, the ultimate immigration consequences were not truly clear because of defendant’s unique circumstances. Contrary to the majority’s claim, requiring a CPL 440.10 motion to determine what specific advice counsel gave to defendant or counsel’s strategy would not undermine the Sixth Amendment protections to which defendant is entitled.
Thus, given that counsel’s advice that defendant “could be deported” is not exactly wrong, and the lack of clarity on the record as to counsel’s reasons for proceeding with the plea especially after consultation with an immigration attorney regarding the ramifications of the plea, defendant should be required to raise his ineffective assistance claim in a CPL 440.10 motion to develop a proper record.
Defendant misplaces reliance on People v Corporan (135
Since defendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claims may not be addressed on appeal. Moreover, assuming that counsel’s advice to defendant was only that he “could be deported,” which was the same advice that the court itself provided, defendant has not shown that this constituted ineffective assistance. Accordingly, I would affirm defendant’s conviction.