| People v Varenga |
| 2014 NY Slip Op 01472 [115 AD3d 684] |
| March 5, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Natanael Sagastumeal Varenga,Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Thomas C. Costello ofcounsel), for respondent.
Appeal by the defendant, by permission, from an order of the Supreme Court,Suffolk County (Hinrichs, J.), dated August 4, 2011, which denied, without a hearing, hismotion pursuant to CPL 440.10 to vacate a judgment of the same court rendered May 14,2009, convicting him of assault in the second degree, upon his plea of guilty, andimposing sentence. Justice Mastro has been substituted for former Justice Angiolillo(see 22 NYCRR 670.1 [c]).
Ordered that the order is reversed, on the law, and the matter is remitted to theSupreme Court, Suffolk County, for an evidentiary hearing on the defendant's motion,and for a new determination of the motion thereafter.
The defendant, a native of Honduras who is in the United States under temporaryprotected status, pleaded guilty to assault in the second degree. Thereafter, the SupremeCourt imposed the agreed-upon sentence of five years of probation. Subsequently, theImmigration and Customs Enforcement Unit of the United States Department ofHomeland Security initiated removal proceedings against the defendant on the groundthat the conviction was a deportable offense. On April 13, 2011, the defendant, relyingon Padilla v Kentucky (559 US 356 [2010]), moved to vacate his conviction onthe ground, among others, that he was deprived of his right to the effective assistance ofcounsel by his attorney's alleged failure to advise him of the immigration consequencesof his plea, and asserted that Padilla should be applied retroactively. TheSupreme Court denied the defendant's motion, without a hearing, based upon itsconclusion that Padilla did not apply retroactively. By decision, order, andcertificate granting leave to appeal on application dated March 29, 2012, a Justice of thisCourt granted the defendant leave to appeal from the order.
In Chaidez v United States (568 US —, 133 S Ct 1103 [2013]), theUnited States Supreme Court held that the rule stated in Padilla does not applyretroactively to persons whose convictions became final before Padilla wasdecided. While the defendant submitted his brief prior to the United States SupremeCourt's decision in Chaidez, inasmuch as the defendant argues, in effect, that thisCourt should give broader retroactive effect to the Padilla rule than requiredunder Teague v Lane (489 US 288 [1989]; see generally Danforth vMinnesota, 552 US 264, 282 [2008]), we have declined to do so (see People v Andrews, 108AD3d 727 [2013]).[*2]
Nevertheless, for present purposes, thedefendant's conviction here did not become final until June 14, 2010, the last date onwhich he would have been permitted to seek leave to file a late notice of appeal (seePeople v Andrews, 108 AD3d at 728; see also CPL 460.10 [1] [a]; 460.30[1]; General Construction Law § 25-a [1]). Thus, the defendant's conviction wasnot final when Padilla was decided on March 31, 2010 (see Padilla vKentucky, 559 US 356 [2010]).
"In order to prevail on a claim that, prior to deciding whether to plead guilty, adefendant was deprived of the right to the effective assistance of counsel under theUnited States Constitution, he or she must meet the two-part standard set forth inStrickland v Washington (466 US [668,] 688 [1984]; see People v McDonald, 1NY3d 109, 113 [2003])" (People v Picca, 97 AD3d 170, 177 [2012]). "Under thefirst prong of that standard, the 'defendant must show that counsel's representation fellbelow an objective standard of reasonableness' " (id. at 177, quotingStrickland v Washington, 466 US at 688; see People v McDonald, 1NY3d at 113). "The second prong 'focuses on whether counsel's constitutionallyineffective performance affected the outcome of the plea process' " (People vPicca, 97 AD3d at 177, quoting Hill v Lockhart, 474 US 52, 59 [1985];see People v McDonald, 1 NY3d at 114).
"With respect to the first prong of the Strickland standard, prior to the UnitedStates Supreme Court's decision in Padilla, it was the law of this State thatdefense counsel was not under a duty to advise defendants of the removal consequencesof a plea of guilty because such consequences were deemed to be collateral to thesentence" (People v Picca, 97 AD3d at 177 [internal quotation marks omitted];see People v McDonald, 1 NY3d at 114; People v Ford, 86 NY2d 397,403 [1995]; see also People v Vargas, 112 AD3d 979 [2013]). "Thus, prior toPadilla, defendants could only assert valid ineffective assistance claims wheretheir attorneys had provided them with affirmatively incorrect advice regarding removalconsequences" (People v Picca, 97 AD3d at 177-178; see People vMcDonald, 1 NY3d at 114-115).
In Padilla, the Supreme Court held that the Sixth Amendment to the UnitedStates Constitution requires an attorney for a criminal defendant to provide advice to thedefendant about the risk of deportation which will arise as a result of a plea of guilty(see Padilla v Kentucky, 559 US 356 [2010]; see also Chaidez v UnitedStates, 568 US at —, 133 S Ct at 1105). Thus, in those cases in whichPadilla is applicable, "where an attorney fails to advise a criminal defendant, ormisadvises the defendant, regarding clear removal consequences of a plea of guilty, hisor her representation falls below an objective standard of reasonableness" (People vPicca, 97 AD3d at 178; see Padilla v Kentucky, 559 US at 366-369).
Here, the defendant established, sufficiently to warrant an evidentiary hearing(see generally CPL 440.10), that his attorney's performance fell below anobjective standard of reasonableness, inasmuch as the evidence submitted in support ofhis motion supported his claim that his attorney failed to advise him concerning theimmigration consequences of his guilty plea (see generally Padilla v Kentucky,559 US 356 [2010]).
"To satisfy the second prong of the Strickland standard, also known as theprejudice prong, the defendant must show that there is a reasonable probability that, butfor counsel's errors, he would not have pleaded guilty and would have insisted on goingto trial" (People v Picca, 97 AD3d at 180 [internal quotation marks omitted];see Hill v Lockhart, 474 US at 59; People v McDonald, 1 NY3d at 115)."In the context of a Padilla claim, the defendant 'must convince the court that adecision to reject the plea bargain would have been rational under the circumstances' "(People v Picca, 97 AD3d at 180, quoting Padilla v Kentucky, 559 US at372). Under the particular circumstances of this case, the defendant established,sufficiently to warrant an evidentiary hearing, that a decision to reject the plea bargainwould have been rational.
Thus, the Supreme Court should not have denied, without a hearing, the defendant'smotion pursuant to CPL 440.10 to vacate the judgment of conviction. Mastro, J.P.,Dickerson, Austin and Hinds-Radix, JJ., concur.