| People v Williams |
| 2010 NY Slip Op 03187 [72 AD3d 1347] |
| April 22, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v FranklinFitzgerald Williams, Appellant. |
—[*1] Mark D. Suben, District Attorney, Cortland (Kevin A. Jones of counsel), forrespondent.
Stein, J. Appeal, by permission, from an order of the County Court of Cortland County(Campbell, J.), entered February 23, 2009, which denied defendant's motion pursuant to CPL440.10 to vacate the judgment convicting him of the crime of criminal sale of a controlledsubstance in the third degree, without a hearing.
Defendant, a citizen of St. Kitts-Nevis, was charged in an indictment with criminal sale of acontrolled substance in the third degree. He pleaded guilty to that crime, waived his right toappeal and was sentenced to two years in prison followed by two years of postreleasesupervision. Thereafter, as defendant's conviction was related to a controlled substance, theImmigration and Naturalization Service commenced deportation proceedings against him(see 8 USC § 1227 [a] [2] [B] [i]). Defendant subsequently moved to vacate thejudgment of conviction pursuant to CPL 440.10, claiming that he was denied the effectiveassistance of counsel and that his plea was not knowing and voluntary because his attorney hadassured him that pleading guilty would not expose him to deportation. After concluding thatdefendant's ineffective assistance challenge did not impact the voluntariness of his plea and wasthus precluded by the waiver of his right to appeal, County Court denied the motion without ahearing. With permission from this Court, defendant now appeals.
We reverse. Inasmuch as defendant asserts that he would not have pleaded guilty but [*2]for counsel's representation that doing so would not subject him todeportation, defendant's ineffective assistance of counsel claim impacts the voluntariness of hisplea and survives the waiver of his right to appeal (see People v Marshall, 66 AD3d 1115, 1116 [2009]), particularlyin view of the recent decision of the United States Supreme Court in Padilla v Kentucky(559 US —, 130 S Ct 1473 [2010]). Moreover, where a defendant can demonstrateprejudice—that he or she would not have entered the plea and would have insisted ongoing to trial absent counsel's misadvice—such a claim may form the basis for vacating aplea (see People v McDonald, 1NY3d 109, 114-115 [2003]). Here, the affidavit accompanying defendant's motion indicatesthat he initially rejected the People's plea offer, accepting it only after allegedly being assured bycounsel several times that pleading guilty would not result in his deportation (cf. id. at115). Notably, an affidavit submitted by defendant's girlfriend supports his contention,suggesting that defendant repeatedly expressed reservations about pleading guilty if such a pleamight lead him to being deported. According to her, she was present on at least four occasionswhen defense counsel stated that defendant would not be exposed to deportation proceedings dueto his guilty plea. Under such circumstances, County Court should have conducted a hearingprior to deciding defendant's CPL 440.10 motion (see People v Marshall, 66 AD3d at1116; People v McKenzie, 4 AD3d437, 438-440 [2004]; comparePeople v Argueta, 46 AD3d 46, 51 [2007], lv dismissed 10 NY3d 761 [2008]).
Peters, J.P., Lahtinen, Malone Jr. and Garry, JJ., concur. Ordered that the order is reversed,on the law, and matter remitted to the County Court of Cortland County for further proceedingsnot inconsistent with this Court's decision.