People v. Galan

• Decision Date: 09 April 2014
• Citation: 116 A.D.3d 787,983 N.Y.S.2d 317,2014 N.Y. Slip Op. 02451
• Parties: The PEOPLE, etc., appellant, v. Pedro GALAN, respondent.
• Court: New York Supreme Court — Appellate Division

116 A.D.3d 787

983 N.Y.S.2d 317

2014 N.Y. Slip Op. 02451

The PEOPLE, etc., appellant,

v.Pedro GALAN, respondent.

Supreme Court, Appellate Division, Second Department, New York.

April 9, 2014.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and Jennifer Hagan of counsel), for appellant.

Lynn W.L. Fahey, New York, N.Y. (Lisa Napoli of counsel), for respondent.

MARK C. DILLON, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, and COLLEEN D. DUFFY, JJ.

Appeal by the People from an order of the Supreme Court, Queens County (Braun, J.), dated July 20, 2012, which, after a hearing, granted the defendant's motion pursuant to CPL 440.10 to vacate a judgment of the same court (Browne, J.), rendered May 29, 1998, convicting him of attempted criminal sale of a controlled substance in the third degree, upon his plea of guilty, and imposing sentence.

ORDERED that the order is reversed, on the law, the defendant's motion pursuant to CPL 440.10 to vacate the judgment is denied, and the judgment is reinstated.

On March 31, 1998, the defendant, a native of the Dominican Republic and a lawful permanent resident of the United States, pleaded guilty to attempted criminal sale of a controlled substance in the third degree. On May 29, 1998, he was sentenced to a five-year period of probation. Twelve years later, in June 2010, after the defendant was arrested on an unrelated charge, the Immigration and Customs Enforcement Unit of the United States Department of Homeland Security initiated removal proceedings against him on the ground that his 1998 conviction was a deportable offense. On October 5, 2010, the defendant moved to vacate the conviction on the ground that he was deprived of his right to the effective assistance of counsel under the state and federal constitutions, alleging, inter alia, that his attorney affirmatively misinformed him concerning the deportation consequences of his plea, and that had he been accurately advised, he would have rejected the plea and proceeded to trial. Following a hearing at which both the defendant and his trial counsel testified, the Supreme Court granted the defendant's motion.

The hearing court erred in granting the defendant's motion to vacate the judgment of conviction. “A criminal defendant is guaranteed the effective assistance of counsel under both the federal and the state constitutions” (People v. Bassi, 111 A.D.3d 845, 845, 975 N.Y.S.2d 158 [internal quotation marks omitted]; seeU.S. Const. Amend. VI; N.Y. Const., art. I, § 6; People v. Turner, 5 N.Y.3d 476, 479, 806 N.Y.S.2d 154, 840 N.E.2d 123). Generally, in order to prevail on a claim of ineffective assistance of counsel under the United States Constitution, “a defendant must show that counsel's representation fell below an objective standard of reasonableness” and “that the deficient performance prejudiced the defense” (Strickland v. Washington, 466 U.S. 668, 687, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674;see People v. McDonald, 1 N.Y.3d 109, 113, 769 N.Y.S.2d 781, 802 N.E.2d 131). In the context of a plea of guilty, an attorney's affirmative misadvice regarding the removal consequences of the plea constitutes deficient performance ( see Padilla v. Kentucky, 559 U.S. 356, 369, 130 S.Ct. 1473, 176 L.Ed.2d 284;People v. McDonald, 1 N.Y.3d at 114–115, 769 N.Y.S.2d 781, 802 N.E.2d 131;People v. Picca, 97 A.D.3d 170, 178, 947 N.Y.S.2d 120;People v. McKenzie, 4 A.D.3d 437, 439, 771 N.Y.S.2d 551). To demonstrate prejudice, “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. Hernandez, 22 N.Y.3d 972, 975, 978 N.Y.S.2d 711, 1 N.E.3d 785, quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203;see Strickland v. Washington, 466 U.S. at 694–695, 104 S.Ct. 2052, 80 L.Ed.2d 674).

Under the New York Constitution, a defendant must show that he was not afforded “meaningful representation” ( People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400), which also entails a two-pronged test, “with the first prong identical to its Federal counterpart” ( People v. Georgiou, 38 A.D.3d 155, 160–161, 828 N.Y.S.2d 541). The second prong contains a “prejudice component [which] focuses on the ‘fairness of the process as a whole rather than its particular impact on the outcome of the case’ ” ( People v. Caban, 5 N.Y.3d 143, 156, 800 N.Y.S.2d 70, 833 N.E.2d 213, quoting People v. Benevento, 91 N.Y.2d 708, 714, 674 N.Y.S.2d 629, 697 N.E.2d 584) and, thus, is “somewhat more favorable to defendants” ( People v. Turner, 5 N.Y.3d at 480, 806 N.Y.S.2d 154, 840 N.E.2d 123;see People v. Caban, 5 N.Y.3d at 156, 800 N.Y.S.2d 70, 833 N.E.2d 213). Counsel's representation must be “viewed in totality and as of the time of the representation” ( People v. Baldi, 54 N.Y.2d at 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).

Here, the record does not support the hearing court's finding that the defendant's trial attorney provided him with affirmative misadvice by assuring him that he did not need to worry about the impact of the plea on his immigration status without informing him that the plea would render him eligible for deportation. The attorney testified that, in accordance with her general practice at the time, she would have advised the defendant that he would be subject to deportation as a result of his guilty plea to a drug-related offense. Significantly, on appeal, the defendant does not argue otherwise. The hearing court acknowledged that the defendant's testimony was contradictory in certain crucial respects while the defense attorney's testimony about her general practice was credible. The hearing court erred in concluding that the attorney's testimony of her general practice 12 years earlier, though credible, was insufficient to rebut the defendant's account of what was discussed ( see People v. Glasgow, 95 A.D.3d 1367, 1368–1369, 943 N.Y.S.2d 674;People v. Whitley, 61 A.D.3d 423, 424–425...