| People v Marshall |
| 2009 NY Slip Op 07519 [66 AD3d 1115] |
| October 22, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v RohanMarshall, Appellant. |
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Kavanagh, J. Appeal, by permission, from an order of the County Court of Albany County(Herrick, J.), entered January 9, 2007, which denied defendant's motion pursuant to CPL 440.10to vacate the judgment convicting him of the crime of criminal possession of a controlledsubstance in the fourth degree, without a hearing.
In 2003, defendant pleaded guilty to criminal possession of a controlled substance in thefourth degree and waived his right to appeal in return for an agreement that he receive a prisonsentence of 3 to 6 years. When defendant failed to appear at sentencing, a warrant was issued forhis arrest and, after being apprehended, he was sentenced as a predicate felon to a prison term of4 to 8 years. While defendant's direct appeal of this conviction was pending, the U.S.Immigration and Naturalization Service served upon him a notice that, as a result of hisconviction, deportation proceedings would be initiated against him. After defendant's convictionwas affirmed on appeal (25 AD3d 876 [2006], lv denied 6 NY3d 850 [2006]), he movedto vacate the judgment pursuant to CPL 440.10 because, as defendant claimed, he only pleadedguilty in reliance on his counsel's assurance that the resulting conviction would not mandate hisdeportation under federal law. Therefore, defendant claims that he received ineffective assistanceof counsel and, as a result, his decision to enter a guilty plea was not knowing and [*2]voluntary. County Court denied his application without a hearing.By permission of this Court, defendant now appeals.
Given defendant's insistence that he would not have pleaded guilty but for counsel's adviceregarding the issue of deportation, his claim of ineffective assistance of counsel impacts upon thevoluntariness of his plea and survives the waiver of his right to appeal (see People v Stokely, 49 AD3d966, 968 [2008]). The failure of counsel to correctly advise a defendant that a guilty pleamay result in deportation under applicable federal law can provide a basis for vacating the guiltyplea if it can be shown that there was a reasonable probability that, but for counsel'smisstatement, defendant would not have entered a guilty plea (see People v McDonald, 1 NY3d109, 114-115 [2003]; People vArgueta, 46 AD3d 46, 50 [2007], lv dismissed 10 NY3d 761 [2008]; People v McKenzie, 4 AD3d 437,440 [2004]). Here, defendant alleges that his counsel made an "assurance that he would not haveto worry about Immigration trying to deport him" if he accepted the plea bargain and entered aguilty plea (compare People vSepulveda, 65 AD3d 754, 755 [2009]; People v Nunez, 25 AD3d 376, 377 [2006], lv denied 6NY3d 836 [2006]). In fact, federal law requires that all deportable aliens be removed from theUnited States and defines a deportable alien as one who has been convicted of "a violation of. . . any law or regulation of a [s]tate, the United States, or a foreign countryrelating to a controlled substance (as defined in [21 USC § 802]), other than a singleoffense involving possession for one's own use of 30 grams or less of marijuana" (8 USC §1227 [a] [2] [B] [i]; see People v McKenzie, 4 AD3d at 439). Given defendant'sinsistence that he would not have pleaded guilty but for his reliance on this alleged misstatementby counsel of applicable federal law, County Court should have held a hearing prior to decidingdefendant's CPL 440.10 motion (compare People v McDonald, 1 NY3d at 115).
Spain, J.P., Rose, Lahtinen and Malone Jr., JJ., concur. Ordered that the order is reversed, onthe law, and matter remitted to the County Court of Albany County for further proceedings notinconsistent with this Court's decision.