| People v Bassi |
| 2013 NY Slip Op 07744 [111 AD3d 845] |
| November 20, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Surjeet Bassi, Appellant. |
—[*1] Francis D. Phillips II, District Attorney, Middletown, N.Y. (Andrew R. Kass ofcounsel), for respondent.
Appeal by the defendant, by permission, from an order of the County Court, OrangeCounty (De Rosa, J.), dated January 4, 2012, which denied, without a hearing, his motionpursuant to CPL 440.10 to vacate a judgment of the same court rendered June 4, 1998,convicting him of criminal possession of stolen property in the fourth degree, upon hisplea of guilty, and imposing sentence.
Ordered that the order is affirmed.
The defendant contends that the County Court erroneously denied, without a hearing,his motion pursuant to CPL 440.10 to vacate his judgment of conviction on the groundthat he was denied the effective assistance of counsel based on defense counsel's allegedaffirmative misadvice concerning the immigration consequences of his plea of guilty. Bydecision and order on motion dated August 15, 2012, a Justice of this Court grantedleave to appeal from the County Court's order.
"A criminal defendant is guaranteed the effective assistance of counsel under boththe federal and the state constitutions" (People v Bodden, 82 AD3d 781, 783 [2011]; seeUS Const Amend VI; NY Const, art I, § 6; People v Turner, 5 NY3d 476, 479 [2005]). Under thefederal standard for ineffective assistance of counsel, a defendant "must show thatcounsel's representation fell below an objective standard of reasonableness" and "that thedeficient performance prejudiced the defense" (Strickland v Washington, 466 US668, 687-688 [1984]; seePeople v McDonald, 1 NY3d 109, 113 [2003]). In the context of a plea ofguilty, the prejudice prong of this two-part test "focuses on whether counsel'sconstitutionally ineffective performance affected the outcome of the plea process"(Hill v Lockhart, 474 US 52, 59 [1985]; see People v McDonald, 1NY3d at 114). In order to meet this standard, the " 'defendant must show that there is areasonable probability that, but for counsel's errors, he would not have pleaded guilty andwould have insisted on going to trial' " (People v McDonald, 1 NY3d at 114,quoting Hill v Lockhart, 474 US at 59). In other words, the defendant "mustconvince the court that a decision to reject the plea bargain would have been rationalunder the circumstances" (Padilla v Kentucky, 559 US 356, 372 [2010]).[*2]
Under the state standard, a defendant must showthat he was not afforded "meaningful representation" (People v Baldi, 54 NY2d137, 147 [1981]). Like the federal standard, the state standard entails a two-pronged test"with the first prong identical to its federal counterpart" (People v Georgiou, 38 AD3d155, 160-161 [2007]). The second prong of the state standard involves a "prejudicecomponent [which] focuses on the 'fairness of the process as a whole rather than itsparticular impact on the outcome of the case' " (People v Caban, 5 NY3d 143, 156 [2005], quotingPeople v Benevento, 91 NY2d 708, 714 [1998]) and, thus, has been deemed"somewhat more favorable to defendants" (People v Turner, 5 NY3d 476, 480 [2005]; see People vCaban, 5 NY3d at 156). In evaluating a claim of ineffective assistance of counselunder the state standard, "[s]o long as the evidence, the law, and the circumstances of aparticular case, viewed in totality and as of the time of the representation, reveal that theattorney provided meaningful representation, the constitutional requirement will havebeen met" (People v Baldi, 54 NY2d at 147).
Under the circumstances of this case, contrary to the defendant's contention, theCounty Court did not err in determining that the defendant was not deprived of hisconstitutional right to the effective assistance of counsel based on counsel's allegedmisadvice concerning the immigration consequences of his plea of guilty (seeStrickland v Washington, 466 US at 687; People v Baldi, 54 NY2d 137[1981]; see generally People vMcDonald, 1 NY3d 109 [2003]). The defendant's remaining contentions arewithout merit. Accordingly, the County Court properly denied the defendant's motionpursuant to CPL 440.10 to vacate his judgment of conviction. Eng, P.J., Dickerson,Chambers and Hall, JJ., concur.