| People v Galan |
| 2020 NY Slip Op 01636 [181 AD3d 708] |
| March 11, 2020 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Appellant, v Pedro Galan, Respondent. |
Melinda Katz, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, Kathryn E. Mullen, and Sharon Y. Brodt of counsel), for appellant.
Paul Skip Laisure, New York, NY (Kathleen Whooley of counsel), forrespondent.
Appeal by the People from an order of the Supreme Court, Queens County (EvelynL. Braun, J.), dated July 27, 2018, which granted, without a hearing, the defendant'smotion pursuant to CPL 440.10 to vacate a judgment of the same court (KennethBrowne, J.) rendered May 29, 1998, convicting him of attempted criminal sale of acontrolled substance in the third degree, upon his plea of guilty, and imposingsentence.
Ordered that the order is reversed, on the law and as a matter of discretion in theinterest of justice, that branch of the defendant's motion which was to vacate thejudgment on the ground that he was deprived of the effective assistance of counselbecause his attorney affirmatively misadvised him of the deportation consequences of hisplea is denied, and the matter is remitted to the Supreme Court, Queens County, for ahearing on that branch of the defendant's motion which was to vacate the judgment onthe ground that he was deprived of the effective assistance of counsel because hisattorney failed to attempt to negotiate a plea that would not have exposed him to the riskof mandatory deportation and a new determination thereafter of that branch of themotion.
On March 31, 1998, the defendant, a native of the Dominican Republic and a lawfulpermanent resident of the United States, pleaded guilty to attempted criminal sale of acontrolled substance in the third degree. On May 29, 1998, he was sentenced to afive-year period of probation. In June 2010, after the defendant was arrested on anunrelated charge, the Immigration and Customs Enforcement Unit of the United StatesDepartment of Homeland Security initiated removal proceedings against him on theground that his 1998 conviction was a deportable offense.
On October 5, 2010, the defendant moved pursuant to CPL 440.10 to vacate thejudgment of conviction on the ground that he was deprived of his right to the effectiveassistance of counsel under the state and federal constitutions, alleging, inter alia, that hisattorney affirmatively misinformed him concerning the deportation consequences of hisplea, and that had he been accurately advised, he would have rejected the plea andproceeded to trial. Following a hearing, the Supreme Court granted the defendant'smotion. The People appealed, and, on April 9, 2014, this Court reversed the order,denied the defendant's motion, and reinstated the judgment of conviction (see People v Galan, 116 AD3d787 [2014]).
Thereafter, the defendant moved a second time pursuant to CPL 440.10 to vacate thejudgment of conviction on the ground of ineffective assistance of counsel, again allegingthat his attorney misadvised him concerning the deportation consequences of his plea. Inaddition, the defendant alleged that the attorney was ineffective for failing to negotiate aplea that would have preserved the defendant's eligibility for discretionary relief fromdeportation in immigration court. The Supreme Court granted the defendant's motionwithout a hearing. The People appeal.
The Supreme Court should have denied that branch of the defendant's motion whichwas premised on his claim that his attorney affirmatively misadvised him of thedeportation consequences of his plea inasmuch as this Court previously determined theissue on the merits in the prior CPL 440.10 proceeding (see CPL 440.10 [3] [b];People v Huggins, 130AD3d 1069 [2015]). Contrary to the defendant's contention, he failed to show "goodcause" warranting reconsideration of the claim (CPL 440.10 [3]; cf. People v Hamilton, 115AD3d 12, 28 [2014]).
Contrary to the People's contention, the Supreme Court did not improvidentlyexercise its discretion in considering that branch of the defendant's motion which waspremised on his claim that his attorney was ineffective for failing to attempt to negotiatea plea that would not have exposed the defendant to the risk of mandatory deportation.Although the defendant could have raised the issue in support of his prior CPL 440.10motion (see CPL 440.10 [3] [c]; People v Graves, 62 AD3d 900, 901 [2009]; People v Cochrane, 27 AD3d659, 660 [2006]), the defendant established "good cause" for his belated assertion ofthe claim and that it was potentially meritorious (CPL 440.10 [3]; see People vHamilton, 115 AD3d at 28).
The Supreme Court should not have granted, without a hearing, that branch of thedefendant's motion which was premised on his claim that his attorney failed to attempt tonegotiate such a plea inasmuch as the defendant's allegations in support of it were neither"conceded by the people to be true" nor "conclusively substantiated by unquestionabledocumentary proof" (CPL 440.30 [3] [c]; see People v Gaston, 163 AD3d 442, 445 [2018]).However, contrary to the People's contention, summary denial of that branch of themotion was not warranted either (see CPL 440.30 [4]). Accordingly, we remit thematter to the Supreme Court, Queens County, for a hearing on the defendant's claim inthis regard and a new determination thereafter of that branch of the defendant's motion.Mastro, J.P., Leventhal, Maltese and Brathwaite Nelson, JJ., concur.