| People v Reynoso |
| 2011 NY Slip Op 07527 [88 AD3d 1162] |
| October 27, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Juan CarlosReynoso, Also Known as Juan Carlos Reynoso-Fabian, Also Known as Papi,Appellant. |
—[*1] Beth G. Cozzolino, District Attorney, Hudson (H. Neal Conolly of counsel), forrespondent.
McCarthy, J. Appeal, by permission, from an order of the County Court of Columbia County(Nichols, J.), entered October 28, 2010, which denied defendant's motion pursuant to CPL440.10 to vacate the judgment convicting him of the crimes of criminal sale of a controlledsubstance in the third degree (five counts) and criminal possession of a controlled substance inthe third degree, without a hearing.
In 1999, defendant, a resident alien who had legally entered the United States, pleaded guiltyto the crimes of criminal sale of a controlled substance in the third degree (five counts) andcriminal possession of a controlled substance in the third degree. County Court (Leaman, J.)imposed six terms of 1 to 4 years in prison, three to run consecutively and three to runconcurrently. Upon defendant's appeal challenging only the harshness of his sentence, this Courtaffirmed (People v Reynoso, 11AD3d 719 [2004]). In 2010, defendant moved pursuant to CPL 440.10 to vacate hisconviction. County Court (Nichols, J.) denied the motion without a hearing. Defendant nowappeals by permission.
Defendant contends that his plea was not knowing and voluntary, and that counsel wasineffective, because counsel did not discuss any defenses—namely agency andentrapment—with [*2]defendant, informed defendant thathe had no defenses, misinformed him concerning the deportation consequences of his plea, andpressured him to plead guilty. Initially, defendant's allegations were properly raised in a CPL440.10 motion because they rely on information outside the record of the plea proceedings andtherefore could not have been raised on direct appeal (see People v Hickey, 277 AD2d511, 511-512 [2000], lv denied 95 NY2d 964 [2000]; see also People v Lafoe, 75 AD3d 663, 664 [2010], lvdenied 15 NY3d 953 [2010]; compare CPL 440.10 [2] [c]). County Court properlydiscounted the allegations that defendant was pressured to plead guilty, as those allegations wereconclusory and not factually supported.
County Court properly denied a hearing on the aspects of defendant's motion concerningdefenses. A court may deny a CPL 440.10 motion without a hearing if "[a]n allegation of factessential to support the motion . . . is contradicted by a court record. . . or is made solely by the defendant . . . [and] there is no reasonablepossibility that such allegation is true" (CPL 440.30 [4] [d]). At the beginning of the pleaproceedings, defense counsel advised the court that he had specifically told defendant "about anydefenses in this case," "[i]n particular an agency defense," and that he would be waiving thosedefenses. During the plea colloquy, the court informed defendant that by pleading guilty hewould be "giving up any and all defenses . . . including but not limited to the socalled agency defense and the so called entrapment defense." Defendant acknowledged thecourt's warnings, did not ask any questions about the identified defenses, and stated that he wassatisfied with counsel's representation. His current assertions that he was unaware of the agencyand entrapment defenses are belied by the record, permitting the court to deny a hearingregarding those allegations.
Defendant was entitled to a hearing, however, on the aspect of his motion alleging thatcounsel was deficient by providing incorrect information concerning the deportationconsequences of the plea (see Padilla v Kentucky, 559 US —, —, 130 S Ct1473, 1483 [2010]). As relevant here, federal law provides that any alien who is convicted ofviolating a state law "relating to a controlled substance . . . is deportable" (8 USC§ 1227 [a] [2] [B] [i]). An alien convicted of illicit trafficking of controlled substances hascommitted an aggravated felony (see 8 USC § 1101 [a] [43] [B]), and is noteligible to have the United States Attorney General cancel his or her deportation (see 8USC § 1229b [a] [3]). Thus, defendant's deportation was virtually mandated by hisconviction for selling a controlled substance. According to defendant, however, his counseladvised him that he could avoid deportation if he pleaded guilty and appealed the sentence.Defendant's "understanding was that if [he] appealed the sentence, by the time [he] was releasedfrom prison, [he] could no longer be deported." He also averred that had he known that a plea ofguilty would definitely lead to deportation, he would not have pleaded guilty, but would havetaken his chances at trial. Defendant sufficiently alleged that counsel provided incorrectinformation concerning the deportation consequences that would result from his plea, and thatdefendant was prejudiced because he would not have pleaded guilty had he been properlyadvised. Hence, defendant was entitled to a hearing on that aspect of his motion alleging that hisjudgment of conviction should be vacated because it was thereby tainted by ineffective assistanceof counsel (see People v Williams,72 AD3d 1347, 1348 [2010]; People v Marshall, 66 AD3d 1115, 1116 [2009]).
Peters, J.P., Spain, Stein and Garry, JJ., concur. Ordered that the order is reversed, on thelaw, and matter remitted to the County Court of Columbia County for further proceedings notinconsistent with this Court's decision.