| People v Oouch |
| 2012 NY Slip Op 05566 [97 AD3d 904] |
| July 12, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v AlexanderOouch, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), forrespondent.
Rose, J. Appeal, by permission, from an order of the County Court of Albany County(Breslin, J.), entered December 8, 2011, which denied defendant's motion pursuant to CPL440.10 to vacate the judgment convicting him of the crimes of use of a child in a sexualperformance and possession of a sexual performance by a child, without a hearing.
Defendant, a Russian citizen who migrated to this country as a child in 1993, pleaded guiltyin 2008 to use of a child in a sexual performance and possession of a sexual performance by achild. He was sentenced to an aggregate term of imprisonment of nine years, with three years ofpostrelease supervision. When the US Immigration and Naturalization Service later informeddefendant that he would be deported to Russia, he moved pursuant to CPL 440.10 to vacate thejudgment of conviction based upon, among other things, the ineffectiveness of his counsel infailing to advise him of the deportation consequences of his guilty plea. County Court denied themotion without a hearing and, by permission, defendant appeals.
There is no dispute that the crime of use of a child in a sexual performance is considered"aggravated" so as to require mandatory deportation (see 8 USC §§ 1101 [a][43] [A]; 1227 [a] [2] [A] [iii]; 18 USC § 3509 [a] [8]; Penal Law § 263.05). Ifdefense counsel was aware of defendant's immigration status and failed to inform him that hewas pleading guilty to a [*2]deportable offense, then counsel'srepresentation would fall below an objective standard of reasonableness and thereby satisfy thefirst prong of the test for determining whether defendant was deprived of his constitutional rightto the effective assistance of counsel (see Padilla v Kentucky, 559 US —,—, 130 S Ct 1473, 1482-1484 [2010]; Strickland v Washington, 466 US 668, 688[1984]; People v Carty, 96 AD3d 1093, 1093-1094 [2012]). The second prong of this testrequires a determination of whether "there is a reasonable probability that, but for counsel'sunprofessional errors, the result of the proceeding would have been different" (Strickland vWashington, 466 US at 694).
In support of the first prong, defendant submitted documentary proof establishing thatdefense counsel was aware of his status as a noncitizen. In addition, defendant provided his ownaffidavit claiming that counsel never informed him that pleading guilty would result indeportation. He also provided an affidavit from his stepfather, who averred that he was theprimary contact with defense counsel during plea negotiations and that neither he nor defendantwere ever advised by counsel about the deportation consequences of the plea bargain. Thus,defendant provided his own sworn allegations plus a supporting affidavit tending to substantiatethe essential fact that he was not advised that he would be pleading guilty to a deportable offense(see People v Williams, 72 AD3d1347, 1348 [2010]; see also CPL 440.30 [4] [b], [d]). In opposition to the motion,the People submitted an affidavit from defense counsel stating that defendant's claim was false.We note, however, that defense counsel did not offer any documentary evidence establishing thathe discussed immigration issues with defendant prior to the guilty plea. Accordingly, there is aclear question of credibility and defendant's claim is not conclusively resolved by unquestionabledocumentary evidence (see CPL 440.30 [4] [c]).
Turning to the second prong of the Strickland test, defendant demonstrated prejudiceby claiming that he would not have accepted the plea bargain if he had been informed that itwould result in his deportation to Russia (see People v McDonald, 1 NY3d 109, 114-115 [2003]; Peoplev Williams, 72 AD3d at 1348). This is sufficient as, contrary to the People's argument, theinquiry into prejudice does not require a prediction analysis of the likely outcome of the trial(see People v McDonald, 1 NY3d at 115). In light of defendant's showing that he wouldnot have pleaded guilty if he had been informed that it would result in his deportation, CountyCourt should have held a hearing on the CPL 440.10 motion (see People v Reynoso, 88 AD3d 1162, 1164 [2011]; People vWilliams, 72 AD3d at 1348; Peoplev Marshall, 66 AD3d 1115, 1116 [2009]). As County Court has already made adetermination that there is no reasonable possibility that defendant's claims are true, we remit fora hearing before a different judge.
Mercure, J.P., Kavanagh, McCarthy and Egan Jr., JJ., concur. Ordered that the order isreversed, on the law, and matter remitted to the County Court of Albany County for a hearingbefore a different judge.