| People v Gaston |
| 2018 NY Slip Op 05122 [163 AD3d 442] |
| July 10, 2018 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Appellant, v Bonhof Gaston, Respondent. |
Darcel D. Clark, District Attorney, Bronx (Joshua P. Weiss of counsel), for appellant.
Christina Swarns, Office of the Appellate Defender, New York (Caitlin Glass of counsel), forrespondent.
Order, Supreme Court, Bronx County (William I. Mogulescu, J.), entered on or about August15, 2017, which granted defendant's CPL 440.10 motion to vacate a June 10, 2015 judgment ofconviction, unanimously reversed, on the law, and the matter remanded for a hearing ondefendant's claim of ineffective assistance of counsel as to the issue of prejudice, and for adecision de novo on the motion.
The court improvidently exercised its discretion in summarily granting, without holding ahearing, defendant's motion seeking to vacate of the judgment on the ground that, with respect tothe immigration consequences of his guilty plea, his counsel failed to advise him (see Padillav Kentucky, 559 US 356, 367-369 [2010]), or misadvised him (see People v McDonald, 1 NY3d109, 113-114 [2003]).
In 2014, defendant was indicted for assault-related felonies. In 2015, defendant pleadedguilty to third-degree assault under Penal Law § 120.00 (1), and was sentenced to aterm of one year. During the plea colloquy, the court asked defense counsel, "[H]ave youdiscussed the immigration consequences of this guilty plea with your client?" Counsel replied,"There are none." The court then gave defendant a warning of possible deportation in accordancewith People v Peque (22 NY3d168 [2013], cert denied 574 US &mdash, 135 S Ct 90 [2014]). At the time of hisguilty plea, defendant was also under indictment in Supreme Court, Kings County for attemptedmurder in a separate incident involving his pressing a firearm against a man's head and shootinghim.
By pro se papers dated March 24, 2016, defendant moved to vacate his third-degree assaultconviction pursuant to CPL 440.10. In a written decision dated July 11, 2016, the court denieddefendant's pro se motion. Defendant then obtained new counsel, who filed a second CPL 440.10motion dated March 9, 2017 seeking the same relief, which, as stated above, was granted by thecourt in its August 15, 2017 order.
Counsel's statement on the record that there were no immigration consequences to the pleawas incorrect because defendant pleaded guilty to a crime involving moral turpitude forimmigration purposes (see Immigration and Nationality Act § 212 [a] [2][A] [i] [II] [8 USC § 1227 (a) (2) (A) (i) (II)]), and as such this conviction formed apart of the basis for a deportation order issued for defendant. We find that counsel's misadviceregarding the immigration consequences of defendant's plea, as established by the record of theplea proceeding, fell below an objective standard of reasonableness, thereby satisfying the firstprong of the federal test for evaluating an ineffective assistance claim (see Strickland vWashington, 466 US 668, 687 [1984]; McDonald, 1 NY3d at 113-114 ["A 'defendantmust show that counsel's performance was deficient,' and 'that the deficient [*2]performance prejudiced the defense' "]).
As to Strickland's second prong, in support of his counseled CPL 440.10 motion,defendant provided (1) his own affidavit stating that plea counsel did not discuss with him theimmigration consequences of the plea, and that he would not have pleaded guilty had he known itcould result in his deportation; and (2) an affirmation by counsel, who had no recollection ofwhether he discussed immigration consequences with defendant but did not dispute the accuracyof the plea minutes. The People opposed the motion, inter alia, on the grounds that defendanthad, only weeks after entering his guilty plea in the instant case, pleaded guilty in the KingsCounty case to attempted second-degree assault, an aggravated felony, which he was informedduring his plea was a deportable offense. The People thus argued that immigration consequencescould not have been at the forefront of defendant's mind when he pleaded guilty three weeksearlier in this case.
CPL 440.30 authorizes the summary granting of a motion to vacate a judgment of convictionwhere the moving papers allege a ground constituting a legal basis for the motion (CPL 440.30[3] [a]); where that ground, if factually based, is supported by sworn allegations of fact essentialto support the motion (CPL 440.30 [3] [b]); and where the sworn allegations of essential fact areeither conceded by the People to be true or are conclusively substantiated by unquestionabledocumentary proof (CPL 440.30 [3] [c]). If all three of these statutory criteria are not met, thecourt may not grant a CPL 440.10 motion without first conducting a hearing (CPL 440.30[5]).
Here, only two of the three CPL 440.30 [3] statutory criteria for granting defendant's CPL440.10 motion without a hearing were satisfied. Defendant's moving papers alleged that his pleacounsel provided him ineffective assistance by failing to advise him of the immigrationconsequences of his plea and that, had defendant known that his guilty plea could result indeportation, he would not have entered the plea. Furthermore, at the plea proceeding, when thecourt inquired whether plea counsel had discussed "the immigration consequences of this guiltyplea with [his] client," plea counsel replied, "There are none." Thus, defendant satisfied the firststatutory criterion by alleging a legal basis for his CPL 440.10 motion (CPL 440.30 [3] [a]).Defendant's affidavit in support of the motion contained sworn allegations of fact to the effectthat defense counsel never spoke to him about the immigration consequences of his plea, and thathis defense counsel stated before the court and in his presence that there would be none.
Defendant's affidavit includes his sworn allegations that he was born in Haiti in 1985, that hecame to the United States at the age of five, that he was a lawful permanent resident, that hisparents became naturalized United States citizens and that his wife, who was also a lawfulpermanent resident, was in the process of becoming a United States citizen. The affidavit alsocontained defendant's sworn statement that he would not have entered his guilty plea had heknown of its immigration consequences at the time he entered it. Because these sworn factualallegations were essential to support the objective standards of reasonableness and prejudiceprongs of defendant's motion, the second statutory criterion is satisfied (see CPL 440.30[3] [b]).
Nevertheless, the People did not concede the essential factual allegations on the issue ofprejudice. Indeed, they expressly noted that defendant's allegations of longstanding ties to theUnited States and lack of any connection to Haiti were entirely unsubstantiated. Neither diddefendant proffer documentary proof conclusively substantiating his sworn factual allegations insupport of his claim that "but for [his plea] counsel's errors, he would not have pleaded guilty andwould have insisted on going to trial" (Hill v Lockhart, 474 US 52, 59 [1985]; People v Hernandez, 22 NY3d972, 975 [2013]). Moreover, before the motion court, the People questioned defendant'sclaim that his guilty plea was attributable to his lack of awareness of its immigrationconsequences, given defendant's having obtained cancellation of removal for his 2006 convictionby plea to criminal possession of a weapon in the third degree after a final order of removal hadbeen issued against him for conviction of an aggravated felony. Thus, defendant's CPL 440.10motion failed to satisfy the third criterion of CPL 440.30 (3), and for that [*3]reason, the motion court abused its discretion in grantingdefendant's CPL 440.10 motion without first conducting a hearing and making findings of fact(see CPL 440.30 [5]).
Accordingly, an evidentiary hearing on this motion is required (see People v Sanchez, 150 AD3d589, 589-590 [1st Dept 2017] [hearing required on McDonald claim, despite thedefendant's sworn factual averments and plea counsel's affidavit abjuring any recollection of heradvice she may have given to the defendant]). With respect to the prejudice prong of defendant'sineffective assistance claim, appropriate factors to be weighed at the hearing include, amongother things, evidence of defendant's incentive to remain in the United States rather than return toHaiti, his respective family and employment ties to the United States and his country of origin,the strength of the People's case and defendant's sentencing exposure (see People v Chacko, 99 AD3d527, 527 [1st Dept 2012], lv denied 20 NY3d 1060 [2013]; People v Picca, 97 AD3d 170,183-186 [2d Dept 2012]). Moreover, especially in light of possible inconsistencies in the factualaverments made by defendant in his earlier pro se motion and his counseled motion, the hearingcourt should also consider the credibility of defendant's claim that he would have rejected theplea had he been properly informed of its consequences (see People v Samuels, 143 AD3d 401, 403 [1st Dept 2016][credibility of the defendant's Padilla and McDonald claims should be determinedonly after a hearing]).
Although the court warned defendant of the potential for deportation, his counsel's contraryadvice, that there was no such potential, undermined the court's warning (see People v Corporan, 135 AD3d485 [1st Dept 2016]). Thus, the court's warning did not obviate the need for a hearing ondefendant's claim of ineffective assistance of counsel (see People v Mebuin, 158 AD3d 121, 130 [1st Dept 2017][ordering hearing on McDonald claim notwithstanding plea court's warning ofdeportation consequences of guilty plea]).
For purposes of considering the prejudice prong of defendant's claim at the hearing, it is ofno moment that when taken into custody by immigration authorities, defendant chose to fightdeportation and spent over a year in immigration detention, rather than being deported to Haiti,and also moved to vacate his plea, as these events occurred subsequent to defendant's entry of hisguilty plea. The appropriate inquiry on the issue of prejudice is limited to the defendant'scircumstances as they were at the time of entry of the guilty plea (see Roe vFlores-Ortega, 528 US 470, 480 [2000]). Thus, defendant's factual assertions that he and hiswife are lawful permanent residents, that his parents are naturalized United States citizens andthat his wife is in the process of becoming one may be considered only if those were amongdefendant's circumstances at the time of his plea, rather than at the time of his 2017 swornaffidavit. Concur—Friedman, J.P., Kahn, Singh, Moulton, JJ.