| People v Loaiza |
| 2018 NY Slip Op 01201 [158 AD3d 775] |
| February 21, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Aldeberto Loaiza, Appellant. |
Paul Skip Laisure, New York, NY (Patricia Pazner of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, Tina Grillo, and Anish Patel of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County, datedJanuary 7, 2004 (Douglas Wong, J.), convicting him of criminal possession of a controlledsubstance in the fourth degree, upon his plea of guilty, and imposing sentence. By decision andorder dated August 10, 2016, this Court remitted the matter to the Supreme Court, QueensCounty, for further proceedings on the defendant's motion to withdraw his plea of guilty and,thereafter, a report limited to its findings with respect to the motion and whether the defendantestablished his entitlement to the withdrawal of his plea, and the appeal was held in abeyance inthe interim (see People v Loaiza,142 AD3d 564 [2016]). The Supreme Court, Queens County, has filed its report.
Ordered that the judgment is reversed, on the law, the defendant's motion to withdraw hisplea of guilty is granted, the plea of guilty is vacated, and the matter is remitted to the SupremeCourt, Queens County, for further proceedings.
The defendant, a noncitizen, pleaded guilty to criminal possession of a controlled substancein the fourth degree in late 2003, and a judgment of conviction was rendered in January 2004.Although a timely notice of appeal was filed, in early 2005, upon the People's motion, thedefendant's appeal was dismissed as abandoned. In 2013, upon the defendant's motion, thedismissal was vacated and the appeal was reinstated.
Under the highly unusual circumstances presented, as the defendant's judgment of convictionis not yet final, he is entitled, on this direct appeal, to assert a claim of ineffective assistance ofcounsel based on Padilla v Kentucky (559 US 356 [2010]; see Chaidez v UnitedStates, 568 US 342 [2013]; People vVarenga, 26 NY3d 529 [2015]).
Moreover, we agree with the defendant's contention that the legal representation he receivedat the plea proceeding was deficient inasmuch as the plea minutes show that the defendant'scounsel, who was aware that the defendant was a noncitizen, advised him only that pleadingguilty to a drug felony "may affect his [immigration] status" (emphasis added). Suchadvice was erroneous given that a felony drug conviction involving cocaine made the defendant'sdeportation mandatory (see 8 USC § 1227 [a] [2] [B] [i]; People v Peque, 22 NY3d 168, 191[2013]), and where, as here, the deportation consequence is clear, counsel's duty to give correctadvice is equally clear (see Padilla v Kentucky, 559 US at 369; People v Doumbia, 153 AD3d1139 [2017]; People vCorporan, 135 AD3d 485 [2016]).
In order for the defendant to obtain vacatur of his plea of guilty based on a Padillaviolation, he must also establish that " 'there is a reasonable probability that, but forcounsel's errors, he would not have pleaded guilty and would have insisted on going totrial' " (People v Hernandez,22 NY3d 972, 975 [2013], quoting Hill v Lockhart, 474 US 52, 59 [1985]). TheSupreme Court, in its report, expressed the view that the evidence in the record, as supplementedby the defendant's testimony at the hearing conducted upon remittal, evinced a reasonableprobability that the defendant would not have pleaded guilty but for counsel's incorrect adviceregarding the immigration consequences of his plea, and would have insisted instead on going totrial. We agree, and discern no reason to disturb the credibility determinations made by the court(see People v Elting, 18 AD3d770, 771 [2005]).
Accordingly, we reverse the judgment of conviction, grant the defendant's motion to vacatehis plea, and remit the matter to the Supreme Court, Queens County, for further proceedings.Balkin, J.P., Chambers, Duffy and LaSalle, JJ., concur.