| People v Ricketts-Simpson |
| 2015 NY Slip Op 05975 [130 AD3d 1149] |
| July 9, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vPatrice Ricketts-Simpson, Appellant. |
Frederick Korkosz, Albany, for appellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), forrespondent.
Peters, P.J. Appeal, by permission, from an order of the County Court of AlbanyCounty (Herrick, J.), entered August 12, 2014, which denied defendant's motion pursuantto CPL 440.10 to vacate a judgment convicting her of the crime of rape in the thirddegree, without a hearing.
Defendant, a native of Jamaica with permanent residence status in the United States,pleaded guilty to rape in the third degree and was sentenced to 10 years of probation.More than a decade later, after deportation proceedings were initiated against her basedupon her rape conviction, defendant moved to vacate the judgment of convictionpursuant to CPL 440.10. Specifically, defendant claimed that she was denied theeffective assistance of counsel and that her plea was not knowing and voluntary becauseher attorney did not inform her of the deportation consequences of her guiltyplea—and in fact affirmatively misadvised her in that regard—and failed toinvestigate her mental health condition and possible defenses related thereto. CountyCourt denied the motion without a hearing, and defendant now appeals bypermission.
County Court properly denied a hearing on that aspect of defendant's motionconcerning counsel's failure to inquire into her competency and mental health issues. Insupport of her claim that counsel was deficient in that regard, defendant submitted apsychological evaluation performed more than a decade after she entered the plea, inwhich a psychologist expressed her belief that defendant was not "fully able tomeaningfully understand the consequences of her plea bargain" because she sufferedfrom paranoid schizophrenia. It is undisputed, however, that defendant had not yet beendiagnosed at the time of the plea, and she does not claim that she disclosed her allegedmental health problems to counsel at any time prior thereto. Nor is there [*2]anything in the record to suggest that defendant's ability tounderstand the proceedings was impaired or that defense counsel should have had anydoubts concerning her capacity to enter a knowing and voluntary plea. To the contrary,the plea minutes confirm that defendant actively participated in the colloquy,affirmatively acknowledged that she understood the nature of her rights and theconsequences of her plea, answered the court's questions intelligently and demonstrated aclear and coherent recollection of the events surrounding the crime to which she waspleading. Under these circumstances, counsel's failure to investigate or raise the issue ofdefendant's competency cannot constitute ineffective assistance (see People v Mack, 90 AD3d1317, 1321-1322 [2011]; People v Jenks, 69 AD3d 1120, 1122 [2010], lvdenied 14 NY3d 841 [2010]; People v Roberge, 293 AD2d 913, 915 [2002],lv denied 98 NY2d 680 [2002]).
Defendant's claim that counsel was ineffective for failing to advise her of thedeportation consequences of her plea is grounded upon the rule enunciated in Padillav Kentucky (559 US 356, 368-369 [2010]), which was decided after defendant'sconviction became final and has no retroactive application to this appeal (see Chaidezv United States, 568 US &mdash, &mdash, 133 S Ct 1103, 1105 [2013]; People v Baret, 23 NY3d777, 782 [2014], cert denied 574 US &mdash, 135 S Ct 961 [2015]).However, defendant's distinct claim that counsel affirmatively misinformed her about theplea's deportation consequences is not dependent upon Padilla; rather, it restsupon established law at the time of her plea that defense counsel's affirmativemisrepresentation to a noncitizen regarding the deportation consequences of acontemplated guilty plea constitutes deficient performance so as to satisfy the first prongof an ineffective assistance of counsel claim (see People v McDonald, 1 NY3d 109, 111 [2003]; People v Llibre, 125 AD3d422, 423 [2015], lv granted 24 NY3d 1121 [2015]; People v Melo-Cordero, 123AD3d 595, 595 [2014]; People v Diallo, 113 AD3d 199, 201 n 2 [2013]; People v Glasgow, 95 AD3d1367, 1368 n 2 [2012], lv denied 20 NY3d 1061 [2013]).[FN*]
In her affidavit in support of the motion, defendant alleged that her counsel advisedher that, although immigration authorities would be notified about her guilty plea, "hedid not think anything further would happen." In fact, the crime of rape in the thirddegree constitutes an "aggravated felony" that results in mandatory deportation(see 8 USC § 1101 [a] [43] [A]; § 1227 [a] [2] [A][iii]; § 1229b [a] [3]; see also People v Oouch, 97 AD3d 904, 905 [2012]).Defendant further averred that, had counsel informed her that she was certain to bedeported as a result of her guilty plea, she would not have pleaded guilty and would havegone to trial. As defendant sufficiently alleged that counsel provided incorrectinformation concerning the deportation consequences that would result from her guiltyplea and that she was prejudiced as a result thereof, she was entitled to a hearing on thisaspect of her CPL 440.10 motion (see People v Diallo, 113 AD3d at 202; People v Reynoso, 88 AD3d1162, 1163-1164 [2011]; People v Williams, 72 AD3d 1347, 1348 [2010]; People v Marshall, 66 AD3d1115, 1116 [2009]; see alsoPeople v Martial, 125 AD3d 689, 690 [2015]).
[*3] McCarthy, Egan Jr. and Rose, JJ., concur. Ordered thatthe order is reversed, on the law, and matter remitted to the County Court of AlbanyCounty for further proceedings not inconsistent with this Court's decision.
Footnote *:A counsel's performanceis deficient under the first prong of the test for evaluating claims of ineffective assistanceof counsel when his or her representation falls below an objective standard ofreasonableness (see Strickland v Washington, 466 US 668, 687-688 [1984]; People v Hernandez, 22 NY3d972, 974-975 [2013], cert denied 572 US &mdash, 134 S Ct 1900 [2014];People v McDonald, 1 NY3d at 113). The second prong requires a showing of areasonable probability that the result of the proceeding would have been different but forcounsel's errors (see id.).