People v. Lantigua

• Decision Date: 30 April 2020
• Docket Number: Ind. 7466/98,10764
• Citation: 184 A.D.3d 80,123 N.Y.S.3d 95
• Parties: The PEOPLE of the State of New York, Respondent, v. Gustavo LANTIGUA, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

184 A.D.3d 80

123 N.Y.S.3d 95

The PEOPLE of the State of New York, Respondent,

v.Gustavo LANTIGUA, Defendant–Appellant.

Ind. 7466/98

10764

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

ENTERED: APRIL 30, 2020

The Law Office of Andrew L. Friedman, New York (Andrew L. Friedman of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Frank Glaser of counsel), for respondent.

Dianne T. Renwick, J.P. Barbara R. Kapnick Angela M. Mazzarelli Troy K. Webber, JJ.

RENWICK, J.P.

This appeal involves a summary denial, without a hearing, of a postjudgment, CPL 440.10 motion claiming ineffective assistance of counsel regarding a guilty plea that subjected defendant to mandatory deportation. We find that the trial court improperly denied the motion without a hearing pursuant to CPL 440.30(4)(d)(i) & (ii). This section permits a court to reach the merits of a postjudgment motion without a hearing to dismiss frivolous claims (see People v. MacKenzie, 224 A.D.2d 173, 637 N.Y.S.2d 128 [1st Dept. 1996] ). In the case at bar, however, as the dissent concedes, there is independent support for defendant's assertion that his plea was induced by erroneous advice given by his trial counsel, namely that his felony guilty plea would not subject defendant to mandatory deportation. Nevertheless, the dissent argues that summary denial of the CPL 440.10 motion is still proper, because defendant's allegations did not raise a reasonable possibility that he was prejudiced by the misadvice. We disagree. Like the court below, the dissent applies the wrong prejudice standard, by focusing exclusively on defendant's alleged lack of a viable defense and the likelihood he would have been convicted after trial, and disregards the particular circumstances of defendant's desire to remain in the United States. The dissent's reasoning is contradicted by the recent United States Supreme Court holding in Lee v. United States, 582 U.S. ––––, 137 S. Ct. 1958, 1966, 198 L.Ed.2d 476 (2017), which rejects any per se rule that prevents a defendant from establishing prejudice by an attorney's erroneous advice simply because the defendant may not have a strong defense. Instead, as Lee v. United States mandates, even if the chance of success at trial is low, the prejudice inquiry should focus on the defendant's decision-making and whether it was reasonable for one in defendant's position, facing mandatory deportation, to choose to take a shot a trial.

Factual and Procedural Background

Defendant was arrested on August 4, 1998, and was charged with one count of criminal possession of a controlled substance in the third degree, a class B felony. The charge stemmed from a police officer's allegations that prior to defendant's arrest, the officer had observed several unapprehended individuals, each separately approaching defendant and handing him what appeared to be money. On each occasion, defendant and the unapprehended individual would enter a building. A few minutes later, defendant and the unapprehended individual would exit the building, with defendant then remaining outside the building and the unapprehended individual leaving the location. Eventually, the police officer apprehended defendant inside the building and recovered a tin of cocaine from defendant's person. A grand jury indicted defendant on September 25, 1998. After arraignment on the same day, defendant pleaded guilty to the charge of attempted criminal possession of a controlled substance in the third degree, a class C felony. On November 5, 1998, defendant received the promised sentence of five years probation. The plea to a class C drug felony subjected defendant to mandatory deportation (see Padilla v. Kentucky, 559 U.S. 356, 367–369, 130 S.Ct. 1473, 176 L.Ed.2d 284 [2010], citing 8 USC § 1227 [a][2][B][i]; see also People v. McDonald, 1 N.Y.3d 109, 113–115, 769 N.Y.S.2d 781, 802 N.E.2d 131 [2003] ; People v. Mebuin, 158 A.D.3d 121, 126, 68 N.Y.S.3d 68 [1st Dept. 2017] ; People v. Doumbia, 153 A.D.3d 1139, 1140, 60 N.Y.S.3d 157 [1st Dept. 2017] ).

On August 15, 2016, defendant moved in Supreme Court, New York County, to vacate the 1998 judgment of conviction pursuant to CPL 440.10, claiming a violation of the right to effective assistance of counsel as guaranteed by the United States and New York Constitutions ( U.S. Const Amend VI ; NY Const art I, § 6 ). The crux of defendant's claim was that his trial counsel affirmatively misrepresented to him that there were no deportation consequences to his felony guilty plea and, in fact, advised him that he would not be deported if he pleaded guilty. Defendant supported his claim by, among other things, an unsworn but signed letter by his trial counsel, who admitted that, at the time of defendant's plea, he did not believe that a non-incarceratory sentence would trigger negative immigration consequences because a defendant would not be transferred to immigration custody at the conclusion of a defendant's sentence. Counsel added that at times he would proffer this advice to a defendant or refer a defendant to an immigration attorney. In support of his motion, defendant also included a copy of the transcript of the 1998 plea proceedings, which contained no advice by either defense counsel or the judge about the immigration consequences of the plea.

Finally, in support of his motion, defendant submitted a personal affidavit in which he asserted: At the time of his arrest, he was particularly concerned with the immigration consequences of the arrest; he made sure to ask his attorney about them; and, counsel told him that his guilty plea would not trigger any adverse immigration consequences. Further, defendant asserted that he pleaded guilty under the mistaken belief that, in the future, he would be eligible to become a lawful permanent resident of the United States. Defendant explained: "If my attorney had properly advised me concerning the definite nature of severe immigration consequences and the absence of any immigration discretion to allow me to legalize my status in the United States, I would not have pleaded guilty but instead would have proceeded to trial so that I could remain with [my] family." Defendant explained that his decision to go to trial in the face of permanent ineligibility for legalization of his immigration status would have been buttressed by the following facts:

"I faced only a limited period of incarceration if [defense counsel] lost at trial and I consequently would not have been intimidated in challenging the People's case. Prior to pleading guilty, my attorney explained to me that I would receive a sentence of either 1–3 or 2–6 years of incarceration for a first offense if I lost at trial. I ultimately decided to plead guilty because I did not want to be separated from my family for any length of time. However, if I was aware that my plea of guilty would inevitably ban me from ever securing legal status in this country, I would have fought to insure family unity and remain in the United States, especially since I only risked a relatively limited period of incarceration after trial.... At the time of my plea, my entire immediate family resided lawfully in the United States. Certainly, the presence of my family in the United States would have inspired me to fight my criminal case and prevent my inevitable permanent banishment from the United States and permanent ineligibility for legalization of status if I was properly informed of the severe immigration consequences surrounding my guilty plea."

Supreme Court summarily denied the motion without an evidentiary hearing, pursuant to CPL 440.30(4)(d), on the ground that defendant submitted unsupported allegations. Specifically, the court found that defendant's affidavit "provide[d] little or no objective, identifiable facts upon which [the] court [could] rely to find that [his counsel] affirmatively gave the defendant bad advice, or how [defendant] was prejudiced by that advice." The court noted that the letter from his counsel was not a sworn statement and did "not definitively state how [he] counseled this defendant." Additionally, the court concluded, "even if all statements regarding what advice was provided to the defendant are taken as facts, it is not clear that defendant would have been in any better position had he not relied on it." In that regard, the court noted that defendant had failed to "set forth any basis of a defense" or "mention what trial strategy he believe[d] could have successfully overcome the case against him" and had not asserted "any grounds to suppress any testimony or evidence against him." The court continued: "Instead, [defendant] relie[d] on general personal reasons why he would not have pled guilty to the instant charge since essentially, he had nothing to lose." A justice of this Court granted defendant leave to appeal. We now reverse.

Discussion

A defendant has the right to the effective assistance of counsel before deciding whether to plead guilty (see U.S. Const amend VI ; NY Const, art I, § 6 ; Padilla v. Kentucky, 559 U.S. at 364, 130 S.Ct. 1473 ). In Padilla, the United States Supreme Court held that constitutionally effective assistance of counsel requires defense counsel to advise a defendant whether a plea carries the risk of deportation ( id. at 367–369, 130 S.Ct. 1473 ; see People v. Haffiz, 19 N.Y.3d 883, 884, 951 N.Y.S.2d 690, 976 N.E.2d 216 [2012] ). Whether a defendant is entitled to relief on his claim will depend upon whether he can satisfy the prejudice prong of the Strickland v. Washington test 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; see Padilla, 559 U.S. at 369, 130 S.Ct. 1473 ; People v. Hernandez, 22 N.Y.3d 972, 975, 978 N.Y.S.2d 711, 1 N.E.3d 785 (2013), cert denied 572 U.S. 1070, 134 S.Ct. 1900, 188 L.Ed.2d 930 (2014). In the context of a guilty plea, a defendant must show that there was a reasonable probability that, but for counsel's error, he would not have pleaded guilty and...