| People v Moore |
| 2016 NY Slip Op 05509 [141 AD3d 604] |
| July 13, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Tremain Moore, Also Known as Jamal Smith,Appellant. |
Lynn W. L. Fahey, New York, NY (Mark W. Vorkink of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano,Johnnette Traill, Joseph N. Ferdenzi, and Danielle M. O'Boyle of counsel), forrespondent.
Appeal by the defendant, by permission, from an order of the Supreme Court,Queens County (Kron, J.), dated June 9, 2015, which denied, without a hearing, hismotion pursuant to CPL article 440, inter alia, in effect, to vacate a judgment of the samecourt (Camacho, J.) rendered February 3, 2012, convicting him of grand larceny in thefourth degree, upon his plea of guilty, on the ground that he was deprived of the effectiveassistance of counsel by his attorney's allegedly erroneous advice regarding theimmigration consequences of his plea.
Ordered that the order is modified, on the law, by deleting the provision thereofdenying that branch of the defendant's motion which was pursuant to CPL 440.10 (1) (h),in effect, to vacate the judgment, and substituting therefor a provision granting thatbranch of the defendant's motion; as so modified, the order is affirmed, and the matter isremitted to the Supreme Court, Queens County, for further proceedings in accordanceherewith.
In 2011, the then 17-year-old defendant, a citizen of Jamaica who immigrated to theUnited States at the age of six or seven, was charged with various crimes in two separateindictments. On January 13, 2012, the defendant pleaded guilty to burglary in the seconddegree (Penal Law § 140.25 [2]), in full satisfaction of indictment No.2136/11. On the same date, the defendant pleaded guilty to grand larceny in the fourthdegree (Penal Law § 155.30), in full satisfaction of indictment No. 1521/11,which was an 11-count indictment. With respect to the burglary conviction, the SupremeCourt adjudicated the defendant a youthful offender and sentenced him to anindeterminate term of imprisonment of 1
The defendant did not take a direct appeal from the judgment, and his time to do sohas expired. In October 2014, the United States Department of Homeland Security,Department of [*2]Immigration and CustomsEnforcement (hereinafter ICE), commenced removal proceedings to deport the defendantto Jamaica, and he was placed in an ICE detention center in Kearny, New Jersey.
Thereafter, the defendant moved pursuant to CPL article 440 to set aside or reducehis sentence, or, in effect, to vacate his grand larceny conviction, claiming that he wasdeprived of the effective assistance of counsel by his counsel's failure to advise him ofthe immigration consequences of his plea and to advocate to the sentencing court for asentence that would have resulted in the same aggregate prison time but would haveavoided the immigration consequences he now faces. Pursuant to federal immigrationlaw, the defendant's conviction for grand larceny and sentence of 1 to 3 years constitutesan "aggravated felony," rendering him mandatorily deportable (see 8 USC§ 1227 [a] [2] [A] [iii]). The term "aggravated felony" includes "a theftoffense . . . for which the term of imprisonment [is] at least one year" (8USC § 1101 [a] [43] [G]). Thus, had the defendant received a definitesentence of 364 days on the grand larceny count instead of 1 to 3 years (see PenalLaw § 70.00 [4]), his grand larceny conviction would not constitute anaggravated felony under federal immigration law (see People v Aisewomhonio, 131 AD3d 1177, 1178[2015]; People v Bakare, 280 AD2d 679 [2001]; People v Cuaran, 261AD2d 169, 170 [1999]). Since the defendant's youthful offender sentence on the burglaryconviction was a concurrent, longer sentence, whether he was sentenced to 364 days or 1to 3 years of imprisonment on the grand larceny conviction would have been immaterialto the aggregate prison time he faced.
The Supreme Court denied the defendant's motion, and a Justice of this Courtgranted the defendant leave to appeal.
The Supreme Court properly denied that branch of the defendant's motion which wasto set aside his sentence, as the sentence imposed upon the conviction of grand larceny inthe fourth degree was not "unauthorized, illegally imposed or otherwise invalid as amatter of law" (CPL 440.20 [1]).
Since the defendant's claim that he was deprived of the effective assistance ofcounsel involves a mixed claim that depends, in part, upon matter that would not appearon the record had there been a direct appeal from the judgment, his claims were properlypresented in a motion pursuant to CPL 440.10 (see People v Maxwell, 89 AD3d 1108, 1109 [2011]).
Under the circumstances of this case, we find that the defendant established that hewas deprived of the effective assistance of counsel, in that there was no "strategicreason" (see People v Gross,26 NY3d 689, 694 [2016]) for his attorney's failure to advocate for a sentence thatwould result in the same overall aggregate prison time for the defendant, but whichwould have resulted in no mandatory immigration consequences (see Padilla vKentucky, 559 US 356 [2010]; People v Hernandez, 22 NY3d 972, 975 [2013]; seealso 8 USC §§ 1227 [a] [2] [A] [iii]; 1101 [a] [43] [G]).Accordingly, that branch of the defendant's motion which was pursuant to CPL 440.10(1) (h), in effect, to vacate the judgment should have been granted. Since vacatur of thejudgment under these circumstances necessarily includes vacatur of the defendant's plea,we remit the matter to the Supreme Court, Queens County, for further proceedings onindictment No. 1521/11. Balkin, J.P., Roman, Cohen and Connolly, JJ., concur.