| People v Bennett |
| 2016 NY Slip Op 03608 [139 AD3d 1350] |
| May 6, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vGarth O. Bennett, Appellant. |
Mark D. Funk, Rochester, for defendant-appellant.
Sandra Doorley, District Attorney, Rochester (Scott Myles of counsel), forrespondent.
Appeal, by permission of a Justice of the Appellate Division of the Supreme Court inthe Fourth Judicial Department, from an order of the Supreme Court, Monroe County(Francis A. Affronti, J.), dated March 7, 2012. The order denied the motion of defendantto vacate a judgment of conviction pursuant to CPL 440.10.
It is hereby ordered that the order so appealed from is unanimously reversed on thelaw and the matter is remitted to Supreme Court, Monroe County, for further proceedingsin accordance with the following memorandum: On appeal from an order summarilydenying his pro se motion pursuant to CPL 440.10 seeking to vacate the judgmentconvicting him, upon his plea of guilty, of four counts of robbery in the second degree(Penal Law § 160.10 [1]; [2] [b]), defendant contends that Supreme Courtshould have conducted a hearing on the motion pursuant to CPL 440.30 (5). We agree. Insupport of his motion, defendant, who is not a United States citizen, submitted anaffidavit in which he asserted that his attorney advised him prior to the plea that "there isno way in the world" that he would be deported as a result of his plea because he wasbeing sentenced to less than five years in prison. Defendant further asserted that hewould not have pleaded guilty had he been properly advised of the deportationconsequences of the plea. According to defendant, he was deported to Jamaica afterserving his term of imprisonment.
As the Court of Appeals has held, an affirmative misstatement of the law regardingthe deportation consequences of a plea may provide a basis for vacatur of the plea if itcan be shown that the defendant was thereby prejudiced, i.e., there is a reasonableprobability that the defendant would not otherwise have pleaded guilty (see People v McDonald, 1NY3d 109, 115 [2003]; People v Argueta, 46 AD3d 46, 50 [2007], lv dismissed10 NY3d 761 [2008]). Here, we conclude that defendant's sworn assertions, if true,entitle him to relief and, because it cannot be said that his assertions are incredible as amatter of law, a hearing is required. We reject the People's contention that the courtproperly denied the motion because defendant failed to submit an affidavit from hisformer attorney corroborating his claim (see People v Pinto, 133 AD3d 787, 790 [2015]; People v Washington, 128AD3d 1397, 1399 [2015]). Where, as here, defendant's "application is adverse andhostile to his trial attorney," it "is wasteful and unnecessary" to require the defendant tosecure an affidavit from counsel, or to explain his failure to do so (People vRadcliffe, 298 AD2d 533, 534 [2002]; see Washington, 128 AD3d at 1399).Moreover, contrary to the People's further contention, defendant's assertion that he wouldnot have pleaded guilty if he had been properly advised regarding deportation issufficient to raise an issue of fact whether he was prejudiced by counsel's alleged error(see People vRicketts-Simpson, 130 AD3d 1149, 1151-1152 [2015]; People v Oouch, 97 AD3d904, 905-906 [2012]).
We therefore reverse the order and remit the matter to Supreme Court for a hearingon the motion, i.e., to determine whether, as defendant has alleged, defense counselassured him that he would not be deported as a result of his plea, and, if so, whether thereis a reasonable probability that defendant would not have pleaded guilty if he had beenproperly advised of the deportation [*2]consequences.
Finally, we note that the People have not moved to dismiss the appeal on the groundthat defendant has been deported and, although we have discretion to dismiss apermissive appeal in these circumstances (see People v Harrison, 27 NY3d281, 284-285 [May 5, 2016]), we decline to exercise our discretion to do so. Present—Whalen, P.J., Peradotto, Lindley, NeMoyer andScudder, JJ.