| People v Martial |
| 2015 NY Slip Op 00911 [125 AD3d 689] |
| February 4, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Georges Martial, Appellant. |
Christopher J. Cassar, P.C., Huntington, N.Y. (Richard Toscani of counsel), forappellant.
Appeal by the defendant, by permission, from an order of the County Court,Rockland County (Apotheker, J.), dated September 24, 2012, which denied, without ahearing, his motion pursuant to CPL 440.10 to vacate a judgment of conviction of thesame court rendered December 16, 2011, convicting him of criminal possession of acontrolled substance in the third degree, upon his plea of guilty, and imposingsentence.
Ordered that the order is reversed, on the law, and the matter is remitted to theCounty Court, Rockland County, for an evidentiary hearing on the defendant's motionand a new determination of the motion thereafter.
The defendant pleaded guilty to criminal possession of a controlled substance in thethird degree. Thereafter, the defendant moved to vacate his conviction pursuant to CPL440.10 on the ground that he was deprived of his right to the effective assistance ofcounsel due to counsel's failure to advise him of the immigration consequences of hisplea. By order dated September 24, 2012, the County Court denied the defendant'smotion without a hearing. By decision and order on motion dated December 1, 2014, thisCourt granted the defendant's application for a certificate granting leave to appeal fromthe order.
CPL 440.10 (2) (c) provides that the court must deny a motion to vacate a judgmentwhen "[a]lthough sufficient facts appear on the record of the proceedings underlying thejudgment to have permitted, upon appeal from such judgment, adequate review of theground or issue raised upon the motion, no such appellate review or determinationoccurred owing to the defendant's unjustifiable failure to take or perfect an appeal duringthe prescribed period or to his unjustifiable failure to raise such ground or issue upon anappeal actually perfected by him."
Here, the County Court erred when it summarily denied the defendant's motionpursuant to CPL 440.10 (2) (c), as sufficient facts did not appear on the record to havepermitted adequate review upon the appeal by the defendant, and, in any event, at thetime of the order appealed from, the defendant had not failed to take or perfect an appealwithin the prescribed period.
Moreover, as the defendant sufficiently alleged that defense counsel failed to informhim that a plea of guilty exposed him to mandatory removal from the United States andthat, had he [*2]been advised that deportation wasmandatory, a decision to reject the People's plea offer would have been rational, theCounty Court erred in failing to conduct a hearing on the defendant's motion (seePadilla v Kentucky, 559 US 356 [2010]; People v Varenga, 115 AD3d 684, 686-687 [2014], lvgranted 23 NY3d 1068 [2014]; People v Picca, 97 AD3d 170, 174 [2012]).
In light of our determination, we do not consider the defendant's remainingcontentions. Rivera, J.P., Dickerson, Roman and Cohen, JJ., concur.