| People v Chacko |
| 2012 NY Slip Op 06840 [99 AD3d 527] |
| October 11, 2012 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Matthew Chacko, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (David P. Stromes of counsel), forrespondent. Immigrant Defense Project, New York (Dawn M. Seibert of counsel), for amicuscuriae.
Order, Supreme Court, New York County (Ronald A. Zweibel, J.), entered November 3,2011, which denied defendant's CPL 440.10/440.20 motion to vacate judgment and set aside thesentence, unanimously reversed, on the law, and the matter remanded for an evidentiary hearing.
This case presents factual issues requiring a hearing into whether defendant was deprived ofeffective assistance of counsel under Padilla v Kentucky (559 US —, 130 S Ct1473 [2010]). Defendant alleges that his attorney prejudicially failed to advise him of theimmigration consequences of his plea. Defendant acknowledges that his attorney was unawareher client was not a United States citizen, but alleges that the attorney never asked him anythingabout his citizenship.
The People would place the burden on a defendant to show that his or her attorney wasaware, or should reasonably have been aware, that the client was a noncitizen in order to triggerthe obligation to give advice regarding immigration consequences. However, we see no reason tolimit Padilla to cases where the client volunteers that he or she is not a US citizen, orsome other circumstance casts doubt on the client's US citizenship. Instead, the burden of askingthe client about his or her citizenship should rest on the attorney. A defendant who is unawarethat his or her immigration status is relevant to the criminal proceedings "would have noparticular reason to affirmatively offer information regarding his or her immigration status tocounsel" (People v Picca, 97 AD3d170, 179 [2d Dept 2012]). This case warrants, at least, a hearing into whether defendantmisinformed his attorney as to his citizenship, or whether counsel had any other reason for notinquiring about that matter.
This case also warrants a hearing on the prejudice prong of defendant's Padilla claim.Defendant made a sufficient showing to at least raise an issue of fact as to whether he could have[*2]rationally rejected the plea offer under all the circumstancesof the case, including the serious consequences of deportation, defendant's incentive to remain inthe United States, the strength of the People's case and defendant's sentencing exposure (seePicca, 97 AD3d at 183-186). Furthermore, defendant sufficiently alleges that if immigrationconsequences had been factored into the plea bargaining process, counsel might have been ableto negotiate a different plea agreement that would not have resulted in automatic deportation.
In light of this determination, we do not reach defendant's challenges to the voluntariness andfundamental fairness of his plea, and his claim that his sentence was unconstitutionally harsh.Concur—Andrias, J.P., Friedman, Moskowitz, Freedman and Manzanet-Daniels, JJ.