Opinion
2014-03-5
The PEOPLE, etc., respondent, v. Natanael Sagastumeal VARENGA, appellant.
Solages & Solages, Hauppauge, N.Y. (Phil Solages of counsel), for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Thomas C. Costello of counsel), for respondent.
Solages & Solages, Hauppauge, N.Y. (Phil Solages of counsel), for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Thomas C. Costello of counsel), for respondent.
WILLIAM F. MASTRO, J.P., THOMAS A. DICKERSON, LEONARD B. AUSTIN, and SYLVIA O. HINDS–RADIX, JJ.
Appeal by the defendant, by permission, from an order of the Supreme Court, Suffolk County (Hinrichs, J.), dated August 4, 2011, which denied, without a hearing, his motion pursuant to CPL 440.10 to vacate a judgment of the same court rendered May 14, 2009, convicting him of assault in the second degree, upon his plea of guilty, and imposing sentence. Justice Mastro has been substituted for former Justice Angiolillo ( see22 NYCRR 670.1[c] ).
ORDERED that the order is reversed, on the law, and the matter is remitted to the Supreme Court, Suffolk County, for an evidentiary hearing on the defendant's motion, and for a new determination of the motion thereafter.
The defendant, a native of Honduras who is in the United States under temporary protected status, pleaded guilty to assault in the second degree. Thereafter, the Supreme Court imposed the agreed-upon sentence of five years of probation. Subsequently, the Immigration and Customs Enforcement Unit of the United States Department of Homeland Security initiated removal proceedings against the defendant on the ground that the conviction was a deportable offense. On April 13, 2011, the defendant, relying on Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284, moved to vacate his conviction on the ground, among others, that he was deprived of his right to the effective assistance of counsel by his attorney's alleged failure to advise him of the immigration consequences of his plea, and asserted that Padilla should be applied retroactively. The Supreme Court denied the defendant's motion, without a hearing, based upon its conclusion that Padilla did not apply retroactively. By decision, order, and certificate granting leave to appeal on application dated March 29, 2012, a Justice of this Court granted the defendant leave to appeal from the order.
In Chaidez v. United States, 568 U.S. ––––, 133 S.Ct. 1103, 185 L.Ed.2d 149, the United States Supreme Court held that the rule stated in Padilla does not apply retroactively to persons whose convictions became final before Padilla was decided. While the defendant submitted his brief prior to the United States Supreme Court's decision in Chaidez, inasmuch as the defendant argues, in effect, that this Court should give broader retroactive effect to the Padilla rule than required under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 ( see generally Danforth v. Minnesota, 552 U.S. 264, 282, 128 S.Ct. 1029, 169 L.Ed.2d 859), we have declined to do so ( see People v. Andrews, 108 A.D.3d 727, 970 N.Y.S.2d 226).
Nevertheless, for present purposes, the defendant's conviction here did not become final until June 14, 2010, the last date on which he would have been permitted to seek leave to file a late notice of appeal ( see People v. Andrews, 108 A.D.3d at 728, 970 N.Y.S.2d 226;see also CPL 460.10[1][a]; 460.30[1]; General Construction Law § 25–a[1] ). Thus, the defendant's conviction was not final when Padilla was decided on March 31, 2010 ( see Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284).
“In order to prevail on a claim that, prior to deciding whether to plead guilty, a defendant was deprived of the right to the effective assistance of counsel under the United States Constitution, he or she must meet the two-part standard set forth in Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984);see People v. McDonald, 1 N.Y.3d 109, 113, 769 N.Y.S.2d 781, 802 N.E.2d 131 (2003)” ( People v. Picca, 97 A.D.3d 170, 177, 947 N.Y.S.2d 120). “Under the first prong of that standard, the ‘defendant must show that counsel's representation fell below an objective standard of reasonableness' ” ( id. at 177, 947 N.Y.S.2d 120, quoting Strickland v. Washington, 466 U.S. at 688, 104 S.Ct. 2052;see People v. McDonald, 1 N.Y.3d at 113, 769 N.Y.S.2d 781, 802 N.E.2d 131). “The second prong ‘focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process' ” ( People v. Picca, 97 A.D.3d at 177, 947 N.Y.S.2d 120, quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203;see People v. McDonald, 1 N.Y.3d at 114, 769 N.Y.S.2d 781, 802 N.E.2d 131).
“With respect to the first prong of the Strickland standard, prior to the United States Supreme Court's decision in Padilla, it was the law of this State that defense counsel was not under a duty to advise defendants of the removal consequences of a plea of guilty because such consequences were deemed to be ‘collateral’ to the sentence” ( People v. Picca, 97 A.D.3d at 177, 947 N.Y.S.2d 120 [internal quotation marks omitted]; see People v. McDonald, 1 N.Y.3d at 114, 769 N.Y.S.2d 781, 802 N.E.2d 131;People v. Ford, 86 N.Y.2d 397, 403, 633 N.Y.S.2d 270, 657 N.E.2d 265;see also People v. Vargas, 112 A.D.3d 979, 978 N.Y.S.2d 279). “Thus, prior to Padilla, defendants could only assert valid ineffective assistance claims where their attorneys had provided them with affirmatively incorrect advice regarding removal consequences” ( People v. Picca, 97 A.D.3d at 177–178, 947 N.Y.S.2d 120;see People v. McDonald, 1 N.Y.3d at 114–115, 769 N.Y.S.2d 781, 802 N.E.2d 131).
In Padilla, the Supreme Court held that the Sixth Amendment to the United States Constitution requires an attorney for a criminal defendant to provide advice to the defendant about the risk of deportation which will arise as a result of a plea of guilty ( see Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284;see also Chaidez v. United States, 568 U.S. ––––, 133 S.Ct. at 1105). Thus, in those cases in which Padilla is applicable, “where an attorney fails to advise a criminal defendant, or misadvises the defendant, regarding clear removal consequences of a plea of guilty, his or her representation falls below an objective standard of reasonableness” ( People v. Picca, 97 A.D.3d at 178, 947 N.Y.S.2d 120;see Padilla v. Kentucky, 559 U.S. at 366–369, 130 S.Ct. 1473).
Here, the defendant established, sufficiently to warrant an evidentiary hearing ( see generally CPL 440.10), that his attorney's performance fell below an objective standard of reasonableness, inasmuch as the evidence submitted in support of his motion supported his claim that his attorney failed to advise him concerning the immigration consequences of his guilty plea ( see generally Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284).
“To satisfy the second prong of the Strickland standard, also known as the prejudice prong, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial” ( People v. Picca, 97 A.D.3d at 180, 947 N.Y.S.2d 120 [internal quotation marks omitted]; see Hill v. Lockhart, 474 U.S. at 59, 106 S.Ct. 366;People v. McDonald, 1 N.Y.3d at 115, 769 N.Y.S.2d 781, 802 N.E.2d 131). “In the context of a Padilla claim, the defendant ‘must convince the court that a decision to reject the plea bargain would have been rational under the circumstances' ” ( People v. Picca, 97 A.D.3d at 180, 947 N.Y.S.2d 120, quoting Padilla v. Kentucky, 559 U.S. at 372, 130 S.Ct. 1473). Under the particular circumstances of this case, the defendant established, sufficiently to warrant an evidentiary hearing, that a decision to reject the plea bargain would have been rational.
Thus, the Supreme Court should not have denied, without a hearing, the defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction.