Defendants whose convictions render them deportable and who are facing deportation proceedings and are not just merely inadmissible, should explore the feasibility of vacating their judgments of conviction by filing a 440 motion. Consult an attorney to review the court record and file of your case, the plea or trial minutes and transcript, to determine what, if any, constitutional errors were made in the handling of your case. Below is the current state of the law when claiming effective assistance of counsel.

Section 440.10 of the C.P.L. states in pertinent part that a judgment can be vacated if the judgment was obtained in violation of a right of the defendant under the constitution of this state or of the United States.  See C.P.L. § 440.10 (1)(h).  The right to effective assistance of counsel is a right of a defendant under the constitution of this state and of the United States.  See N.Y. Const., Art I, § 6; U.S. Const., 6th Amend; People v. Rivera, 71 N.Y.2d 705, 708, 525 N.E.2d 698, 700, 530 N.Y.S.2d 52, 55 (1988).

Procedurally, a motion by the defendant to vacate a judgment of conviction is the appropriate vehicle to raise the issue of ineffective assistance of counsel with the trial court. See People v. Brown, 45 N.Y.2d 852 (1978).  The Court of Appeals has noted that frequently a claim of ineffective assistance of counsel is not demonstrable from the record and that such an argument is better “bottomed on an evidentiary exploration by collateral or post-conviction proceeding brought under C.P.L. § 440.10.”  Brown, 45 N.Y.2d at 854. 

Thus, this instant motion brought pursuant to C.P.L. 440 C.P.L. 440.10(1)(h) to vacate defendant’s 1994 judgment of conviction by guilty plea to Sexual Abuse in the Third Degree on the grounds of ineffective assistance of counsel and violation of defendant’s right to due process is proper.

In Padilla v. Kentucky, 130 S. Ct. 1473 (2010), the United States Supreme Court both expanded and clarified its ruling in Strickland v. Washington, 466 US 668 (1984). Faced with the specific issue of whether the constitution obligates defense counsel to advise the defendant that his guilty plea to a controlled substance offense would result in his automatic deportation, the high Court ruled in the affirmative holding that, at the very least, an attorney must inform a defendant that immigration consequences may result from his guilty plea.

Further emphasizing the importance of its holding and its application to motions such as the instant one, the Padilla Court noted “we have long recognized that the negotiation of a plea bargain is a critical phase of litigation for purposes of the Sixth Amendment right to effective assistance of counsel”. Padilla (citing Hill, 474 U.S.  at 57). Moreover it acknowledged that deportation is a “particularly severe penalty” which is “intimately related to the criminal process,” considering deportation “ the equivalent of banishment or exile”, Id. at 1486,  and recognized that “immigration reforms over time have expanded the class of deportable offenses and limited the authority of judges to alleviate the harsh consequences of deportation,”  Id. at 1478, so much so that the Court announced that it found it “‘most difficult’ to divorce the penalty from the conviction in the deportation context.” Id.

The Padilla Court held that the two-prong Strickland ineffective assistance of counsel test applied to defendant, not only to the extent that he alleged affirmative misadvice, but also to the extent that he alleged omissions by counsel. The Court proclaimed that “(it does) agree that there is no relevant difference “between an act of commission and an act of omission” and recognized that a holding limited to affirmative misadvice would be “absurd”. (Padilla at 1484.)

Additionally, even where the law was unclear about the immigration consequences of a guilty plea, Padilla holds Counsel responsible for advising defendant that his guilty plea may carry a risk of adverse immigration consequences. The Court noted though that where the deportation consequences are clear, the “duty to give correct advice is equally clear”. Id. at 1483.

When a defendant challenges the voluntary character of his guilty plea on the ground of ineffective assistance of counsel, the court must determine whether counsel’s representation met both the federal standard and New York State standards. People v. Nunez, 2010 NY Slip Op 20522 (2nd Dept., Dec. 15, 2010). In making such determination, the court must first consider Strickland’s two-pronged test requiring the defendant to show “that counsel’s performance was deficient …[and] that the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984).  Counsel’s performance is deemed deficient if it falls below an objective standard of reasonableness. Id. In support of its holding the Padilla Court affirmed that “the weight of professional norms supports the view that counsel must advise her client regarding the risk of deportation.” Padilla, supra at 1482-83 (citing numerous professional standards, treatises, guidelines and other authorities from 1993 through 2009). Moreover, notwithstanding that the high Court was aware that the law in Kentucky at the time of defendant’s plea did not deem counsel’s performance there to have been ineffective, Id. at 1481, the Court affirmed that “for at least the past 15 years, professional norms have generally imposed an obligation on counsel to provide advice on the deportation consequences of a client’s plea.” Id. at 1485.

Under the New York State Constitution, a defendant’s constitutional right to effective assistance of counsel is satisfied when, under the totality of the circumstances existing at the time of representation, counsel provided the defendant with “meaningful representation.” People v. Satterfield, 66 N.Y.2d 796, 798-799, 488 N.E.2d 834, 836, 497 N.Y.S.2d 903 (1985); People v. Baldi, 54 N.Y.2d 137, 147, 429 N.E.2d 400, 405, 444 N.Y.S.2d 893 (1981).  In light of the foregoing, it is undeniable that counsel’s failure to inform a defendant regarding the immigration consequences of his plea falls short of “meaningful representation” under NY state standards.
Defendant’s show of prejudice must address “whether counsel’s constitutionally ineffective performance affected the outcome of the plea process,” Hill v. Lockhart, 474 U.S. 52, 59 (1985), in 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.” Id. In New York, “the sufficiency of defendant’s actual allegations as to prejudice should be evaluated with reference to the face of the pleadings, the context of the motion and defendant’s access to information.” People v. Mc. Donald, 1 NY3d 109, 115 (2003).

The established rule is that a guilty plea will be upheld within the meaning of the United States and New York State constitutions if it was entered intelligently, knowingly, and voluntarily. People v. Fiummefreddo, 82 N.Y.2d 536, 543, 605 N.Y.S.2d 671 (1993). Consequently, if a defendant’s guilty plea is not intelligently, knowingly, and voluntarily entered into, it has been obtained in violation of due process and is therefore invalid. Boykin v. Alabama, 395 U.S. 238, 243 (1969).
An affirmative misstatement may render a guilty plea involuntary, and hence invalid. An accused who has relied on an affirmative misstatement from counsel in deciding to plea guilty cannot be bound by that plea because the plea would be involuntary and unknowing. United States v. Couto, 311 F.3d 179, 187 (2nd Cir. 2002). However, as noted at length supra, the Padilla ruling has expanded the responsibilities of defense counsel obliging him to mention to or inform his client of immigration consequences triggered by his guilty plea.