| People v Ghingoree |
| 2018 NY Slip Op 07748 [166 AD3d 799] |
| November 14, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Eddie V. Ghingoree, Appellant. |
Robert C. Mitchell, Riverhead, NY (Alfred J. Cicale of counsel), for appellant.
Timothy D. Sini, District Attorney, Riverhead, NY (Grazia DiVincenzo of counsel),for respondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (JohnJ. Toomey, J.), rendered November 7, 2014, convicting him of criminal possession of acontrolled substance in the seventh degree, upon his plea of guilty, and imposingsentence. By decision and order dated May 20, 2017, this Court remitted the matter to theCounty Court, Suffolk County, for further proceedings on the defendant's motion towithdraw his plea of guilty and, thereafter, a report limited to its findings with respect tothe motion and whether the defendant established his entitlement to the withdrawal of hisplea, and the appeal was held in abeyance in the interim (see People v Ghingoree, 150AD3d 881 [2017]). The County Court, Suffolk County, has filed its report. JusticeMastro has been substituted for former Justice Hall (see 22 NYCRR former 670.1[c]).
Ordered that the judgment is reversed, on the law, the defendant's motion towithdraw his plea of guilty is granted, the plea of guilty is vacated, and the matter isremitted to the County Court, Suffolk County, for further proceedings.
The defendant, a noncitizen, pleaded guilty to criminal possession of a controlledsubstance in the seventh degree, a class A misdemeanor, in exchange for a promisedsentence of one year of imprisonment. When the court asked the defendant, during theplea proceeding, whether counsel had explained that he would be deported as a result ofthe instant plea, counsel interrupted before the defendant could answer, stating that thedefendant was already the subject of deportation proceedings as a result of a priordeportable offense.
Shortly after the plea was entered, the defendant wrote to the court indicating that hewould move to withdraw his plea, inter alia, because counsel had failed to inform him ofthe immigration consequences of the plea. Prior to sentencing, the defendant's counselmoved to withdraw, citing "an irreparable relationship." In an accompanying affirmation,counsel stated that he had explained to the defendant that the impact of the instant plea"was moot because the defendant was already in proceedings with the United StatesDepartment of Homeland Security . . . based on a prior conviction forcriminal possession of drug paraphernalia." Significantly, counsel's affirmation alsorevealed that the defendant's immigration situation was, in fact, rather complex. Indeed,the immigration case with respect to the defendant's prior conviction had been terminatedin his favor, but counsel believed that a pending motion to reargue made by federalauthorities would [*2]be granted, thereby rendering theconsequences of the instant plea "immaterial." The defendant, by contrast, was convincedthat the pending immigration proceeding would ultimately be resolved in his favor, andwas adamant about not wanting the instant plea to provide a separate basis to remove himfrom the United States.
The defendant, through his new counsel, subsequently made a timely motion towithdraw his plea, which was summarily denied by the County Court. Upon remittalfrom this Court, the County Court held a proceeding pursuant to People v Tinsley(35 NY2d 926 [1974]) and, upon questioning the defendant, determined that he had notreceived effective assistance of counsel at the time of the plea. We discern no basis in therecord to disturb the County Court's findings in this regard.
In order for the defendant to obtain vacatur of his plea of guilty based on Padillav Kentucky (559 US 356 [2010]), he must establish that there is a reasonableprobability that, but for counsel's errors, he would not have pleaded guilty and wouldhave insisted on going to trial (see People v Hernandez, 22 NY3d 972, 975 [2013]; People v Loaiza, 158 AD3d775, 776-777 [2018]). Although the County Court did not specifically address thisquestion in its report, the record is sufficient for us to conclude that, but for counsel'serrors, there is a reasonable probability that the defendant—who has lived in theUnited States since the age of four and has significant family ties here, including a wifeand three children, as well as parents and siblings—would not have pleaded guilty(see People v Loaiza, 158 AD3d at 777).
Accordingly, we reverse the judgment of conviction, grant the defendant's motion towithdraw his plea of guilty, vacate the plea of guilty, and remit the matter to the CountyCourt, Suffolk County, for further proceedings. Mastro, J.P., Chambers, Maltese andBrathwaite Nelson, JJ., concur.