| People v Rajpaul |
| 2012 NY Slip Op 07901 [100 AD3d 1183] |
| November 21, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v SewdatRajpaul, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Mercure, J.P. Appeals, by permission, from two orders of the County Court of SchenectadyCounty (Drago, J.), entered January 20, 2010 and March 15, 2010, which denied defendant'smotion pursuant to CPL 440.10 to vacate the judgment convicting him of the crime of attemptedassault in the second degree, without a hearing.
Defendant, a citizen of Guyana, entered this country in 2007. In 2008, he agreed to waiveindictment and pleaded guilty to attempted assault in the second degree, following an altercationwith his brother. He was sentenced to time served and five years of probation. After federalauthorities commenced deportation proceedings against him, defendant moved pursuant to CPL440.10 to vacate the judgment of conviction. County Court denied the motion without a hearing.Defendant thereafter submitted additional evidence in support of his motion, in the form of aletter from the attorney who represented him at the time of his plea and sentencing. The courtagain denied the motion, and defendant now appeals by permission from both orders.
Defendant argues that he was denied his right to the effective assistance of counsel under theSixth Amendment (see US Const 6th Amend) based upon counsel's failure to advise himof the deportation consequences of his plea. It is now settled that the right to counsel guaranteedunder the Federal Constitution requires that, "where the immigration consequences of a guiltyplea are clear, making deportation presumptively mandatory, defense counsel must [*2]accurately advise noncitizen clients that their pleas carry the risk ofdeportation" (People v Carty, 96AD3d 1093, 1093-1094 [2012]; see Padilla v Kentucky, 559 US —, —,—, 130 S Ct 1473, 1483, 1486 [2010]). Thus, if defense counsel is aware of thoseconsequences, but fails to so inform a defendant, the representation falls below an objectivestandard of reasonableness (see Padilla v Kentucky, 559 US at — - —, 130S Ct at 1482-1484; Strickland v Washington, 466 US 668, 687-688 [1984]; People v Oouch, 97 AD3d 904,905 [2012]). Under the two-pronged test applicable to federal claims of ineffective assistance ofcounsel, the defendant must then demonstrate a reasonable probability that, but for counsel'serror, the outcome of the proceeding would have been different (see Strickland vWashington, 466 US at 694; People v Oouch, 97 AD3d at 905).
Counsel indicated that he was not aware of defendant's immigration status at the time of theplea. Generally, if counsel is not aware of a defendant's noncitizen status and has no reason toquestion the defendant's citizenship, the failure to inform the defendant of immigrationconsequences of a guilty plea does not constitute ineffective assistance (see People vCarty, 96 AD3d at 1095-1096). Here, in contrast, the police report of the incident resulting inthis charge against defendant indicates that defendant is Guyanese. Moreover, the presentenceinvestigation report (hereinafter PSI) reflects that defendant had resided in this country for onlyapproximately one year prior to his conviction, and the PSI is replete with information regardingdefendant's noncitizen status and his eagerness to provide documentation that his residency inthis country is legal. Given counsel's unexplained failure to inquire into defendant's immigrationstatus prior to the plea proceeding or to move to withdraw the plea upon receipt of the PSI,defendant adequately demonstrated that the representation fell below an objective standard ofreasonableness.
Further, in our view, defendant sufficiently established prejudice to warrant a hearing. Areview of the record indicates that the evidence against defendant was far from overwhelming,supporting his contention that, if he had been made aware of the deportation consequences ofpleading guilty, he would have elected to take his chances at trial, rather than accepting asentence of time served. In light of the foregoing, County Court should have held a hearing onthe CPL 440.10 motion (see People v Oouch, 97 AD3d at 906; People v Reynoso, 88 AD3d 1162,1164 [2011]; People v Marshall, 66AD3d 1115, 1116 [2009]).
Finally, we conclude that Padilla v Kentucky should be applied retroactively for thereasons stated by the Appellate Division, First Department in People v Baret (99 AD3d 408, 409 [2012]; see People vOouch, 97 AD3d at 905-906).
Rose, Lahtinen, McCarthy and Egan Jr., JJ., concur. Ordered that the orders are reversed, onthe law, and matter remitted to the County Court of Schenectady County for a hearing.