| People v Galan |
| 2014 NY Slip Op 02451 [116 AD3d 787] |
| April 9, 2014 |
| Appellate Division, Second Department |
| The People of the State of New York,Appellant, v Pedro Galan, Respondent. |
—[*1] Lynn W.L. Fahey, New York, N.Y. (Lisa Napoli of counsel), forrespondent.
Appeal by the People from an order of the Supreme Court, Queens County (Braun,J.), dated July 20, 2012, which, after a hearing, granted the defendant's motion pursuantto CPL 440.10 to vacate a judgment of the same court (Browne, J.), rendered May 29,1998, convicting him of attempted criminal sale of a controlled substance in the thirddegree, upon his plea of guilty, and imposing sentence.
Ordered that the order is reversed, on the law, the defendant's motion pursuant toCPL 440.10 to vacate the judgment is denied, and the judgment is reinstated.
On March 31, 1998, the defendant, a native of the Dominican Republic and a lawfulpermanent resident of the United States, pleaded guilty to attempted criminal sale of acontrolled substance in the third degree. On May 29, 1998, he was sentenced to afive-year period of probation. Twelve years later, in June 2010, after the defendant wasarrested on an unrelated charge, the Immigration and Customs Enforcement Unit of theUnited States Department of Homeland Security initiated removal proceedings againsthim on the ground that his 1998 conviction was a deportable offense. On October 5,2010, the defendant moved to vacate the conviction on the ground that he was deprivedof his right to the effective assistance of counsel under the state and federal constitutions,alleging, inter alia, that his attorney affirmatively misinformed him concerning thedeportation consequences of his plea, and that had he been accurately advised, he wouldhave rejected the plea and proceeded to trial. Following a hearing at which both thedefendant and his trial counsel testified, the Supreme Court granted the defendant'smotion.
The hearing court erred in granting the defendant's motion to vacate the judgment ofconviction. "A criminal defendant is guaranteed the effective assistance of counsel underboth the federal and the state constitutions" (People v Bassi, 111 AD3d 845, 845 [2013] [internalquotation marks omitted]; see US Const Amend VI; NY Const, art I, § 6;People v Turner, 5 NY3d476, 479 [2005]). Generally, in order to prevail on a claim of ineffective assistanceof counsel under the United States Constitution, "the defendant must show that counsel'srepresentation fell below an objective standard of reasonableness" and "that the deficientperformance prejudiced the defense" (Strickland v Washington, 466 US 668,687, 688 [1984]; see People vMcDonald, 1 NY3d 109, 113 [2003]). In the context of [*2]a plea of guilty, an attorney's affirmative misadviceregarding the removal consequences of the plea constitutes deficient performance(see Padilla v Kentucky, 559 US 356, 369 [2010]; People v McDonald, 1NY3d at 114-115; People vPicca, 97 AD3d 170, 178 [2012]; People v McKenzie, 4 AD3d 437, 439 [2004]). Todemonstrate prejudice, "the defendant 'must show that there is a reasonable probabilitythat, but for counsel's errors, he would not have pleaded guilty and would have insistedon going to trial' " (People vHernandez, 22 NY3d 972, 975 [2013], quoting Hill v Lockhart, 474 US52, 59 [1985]; see Strickland v Washington, 466 US at 694-695).
Under the New York Constitution, a defendant must show that he was not afforded"meaningful representation" (People v Baldi, 54 NY2d 137, 147 [1981]), whichalso entails a two-pronged test, "with the first prong identical to its federal counterpart"(People v Georgiou, 38AD3d 155, 160-161 [2007]). The second prong contains a "prejudice component[which] focuses on the 'fairness of the process as a whole rather than its particular impacton the outcome of the case' " (People v Caban, 5 NY3d 143, 156 [2005], quotingPeople v Benevento, 91 NY2d 708, 714 [1998]) and, thus, is "somewhat morefavorable to defendants" (People v Turner, 5 NY3d at 480; see People vCaban, 5 NY3d at 156). Counsel's representation must be "viewed in totality and asof the time of the representation" (People v Baldi, 54 NY2d at 147).
Here, the record does not support the hearing court's finding that the defendant's trialattorney provided him with affirmative misadvice by assuring him that he did not need toworry about the impact of the plea on his immigration status without informing him thatthe plea would render him eligible for deportation. The attorney testified that, inaccordance with her general practice at the time, she would have advised the defendantthat he would be subject to deportation as a result of his guilty plea to a drug-relatedoffense. Significantly, on appeal, the defendant does not argue otherwise. The hearingcourt acknowledged that the defendant's testimony was contradictory in certain crucialrespects while the defense attorney's testimony about her general practice was credible.The hearing court erred in concluding that the attorney's testimony of her general practice12 years earlier, though credible, was insufficient to rebut the defendant's account ofwhat was discussed (see Peoplev Glasgow, 95 AD3d 1367, 1368-1369 [2012]; People v Whitley, 61 AD3d423, 424-425 [2009]). The record demonstrates that the defendant was advised thatremoval was a possible consequence of his plea and he was not misinformed to thecontrary. As such, the defendant failed to meet his burden to show that his attorneyprovided him with constitutionally deficient advice (see People v Obeya, 110 AD3d 1382, 1383 [2013];People v Glasgow, 95 AD3d at 1369; People v Argueta, 46 AD3d 46, 51 [2007]; cf. UnitedStates v Couto, 311 F3d 179, 188 [2d Cir 2002], cert denied 544 US 1034[2005]; People vMcDonald, 1 NY3d 109, 115 [2003]). Consequently, he failed to establish thathe was deprived of meaningful representation (see People v Obeya, 110 AD3d at1383; People v Glasgow, 95 AD3d at 1369; People v Argueta, 46 AD3dat 51).
In any event, the defendant further failed to demonstrate that the circumstances of thecase, including his incentive to remain in the United States, were such that there was areasonable probability that, but for his attorney's allegedly deficient advice, he wouldhave rejected the plea offer in favor of risking a sentence of up to 25 years in prison inthe hope of being acquitted after trial (see People v Soodoo, 109 AD3d 1014, 1016 [2013]; cf.People v Picca, 97 AD3d at 184; People v McKenzie, 4 AD3d at 439-440).Likewise, the defendant failed to show that the alleged misadvice was "egregious andprejudicial" error such that it denied him meaningful representation (People vBenevento, 91 NY2d at 713; see People v Caban, 5 NY3d at 152).
Accordingly, the Supreme Court should have denied the defendant's motion pursuantto CPL 440.10 to vacate the judgment of conviction. Dillon, J.P., Hall, Austin and Duffy,JJ., concur.