People v. McDonald

• Decision Date: 24 November 2003
• Citation: 1 N.Y.3d 109,802 N.E.2d 131,769 N.Y.S.2d 781
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. BRUCE McDONALD, Appellant.
• Court: New York Court of Appeals Court of Appeals

1 N.Y.3d 109

802 N.E.2d 131

769 N.Y.S.2d 781

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. BRUCE McDONALD, Appellant.

Court of Appeals of the State of New York.

Argued October 15, 2003.

Decided November 24, 2003.

New York State Defenders Association, Albany (Alfred O'Connor of counsel), for appellant.

George M. Dentes, District Attorney, Ithaca, for respondent. Chief Judge KAYE and Judges G.B. SMITH, ROSENBLATT, GRAFFEO and READ concur.

OPINION OF THE COURT

CIPARICK, J.

This appeal raises the question whether, under certain circumstances, a defense counsel's incorrect advice as to deportation consequences of a plea may constitute ineffective assistance of counsel. We answer in the affirmative but conclude that in the instant case—where defendant has failed to make the requisite showing of prejudice due to counsel's incorrect advice—defendant was not deprived of the effective assistance of counsel under the Federal Constitution.

I.

Defendant Bruce McDonald came to the United States from Jamaica and has apparently been a lawful permanent resident of the United States for over 20 years. While in the United States, defendant had three children, all American citizens by birth. His wife is also an American citizen.

In April 1999, an undercover officer of the New York State Police made two controlled buys of marihuana from defendant at a university cafeteria where he was employed. On May 4, 1999, a sealed indictment was filed against defendant in connection with those transactions and he was arrested the following day. During the execution of a search warrant, the police discovered one-third ounce of cocaine, 9.4 ounces of marihuana and an electric scale in defendant's apartment. Thereafter, a superseding eight count indictment was filed against defendant for criminal sale of marihuana in the third degree and criminal possession of marihuana in the fifth degree on both April 26, 1999 and April 28, 1999, and criminal possession of a controlled substance in the third and fourth degrees, criminal use of drug paraphernalia in the second degree and criminal possession of marihuana in the third degree on May 5, 1999.

With the advice of counsel, defendant pleaded guilty to criminal sale of marihuana in the third degree and criminal possession of a controlled substance in the third degree in full satisfaction of all charges. He was sentenced, in accordance with his plea agreement, to concurrent indeterminate prison terms of 1 to 3 years.¹ The next day, the United States Immigration and Naturalization Service (INS) served defendant with a notice of hearing of deportation based on his conviction for aggravated felonies pursuant to, among other statutory provisions, 8 USC §§ 1101 (a) (43) (B), 1227 (a) (2) (A) (iii) and 1229 (b).

Approximately seven weeks later, defendant's trial counsel moved on defendant's behalf to vacate the judgment of conviction under CPL 440.10 (1) (h), contending that defendant had been denied effective assistance of counsel. In a supporting affirmation, trial counsel admitted that he incorrectly advised defendant that his guilty plea "would not result in deportation because of the Defendant's lengthy residence in the United States and the fact [sic] his three children were born and reside in the United States" (emphasis in original). Counsel further admitted that his advice was "plainly in error" as defendant was actually at risk of mandatory deportation upon conviction of any of the felonies charged.

Alleging that, during plea negotiations, the District Attorney made essentially the same erroneous representations about deportation consequences, counsel admitted that he advised defendant of the prosecutor's representations prior to the guilty plea. Counsel contended that, while defendant had "maintained his innocence" before the grand jury, he entered the guilty plea "in reliance on" counsel's "affirmative misstatements and legal errors" and, therefore, the plea was constitutionally invalid.

The People opposed defendant's motion to vacate the judgment of conviction and sentence. Among other things, the District Attorney denied that he ever told counsel that defendant would not be deported if convicted of the felonies charged, but stated only that he knew very little about immigration matters and that generally long-term residents of the United States had better chances of resisting deportation than short-term residents. According to the People, the District Attorney also recommended that counsel contact INS to discuss the matter. In addition, the People argued that defendant's ineffective assistance of counsel claim should fail because defendant did not make the requisite showing of prejudice as a result of counsel's erroneous advice. Specifically, the People contended that defendant failed to allege that the outcome of the trial would have been any different had defendant not pleaded guilty.

County Court denied defendant's motion without a hearing for the reasons set forth in the People's response. The Appellate Division affirmed, holding that

"defendant has not demonstrated that he was prejudiced by counsel's misadvice, i.e., that it was reasonably probable that he would have forgone the plea deal and instead insisted on going to trial had he been correctly advised regarding the deportation consequences of the proposed guilty plea, or that, had he rejected the plea bargain, the outcome of the proceeding likely would have changed and, thus, we cannot conclude that he was deprived of the effective assistance of counsel under either the State or Federal Constitution" (296 AD2d 13, 21 [2002] [citations omitted]). A Judge of this Court granted leave to appeal and we now affirm.

II.

The right to effective assistance of counsel is guaranteed by the Federal and State Constitutions (US Const 6th Amend; NY Const, art I, § 6). Under the Federal Constitution, the "long-standing test for determining the validity of a guilty plea is whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant" (Hill v Lockhart, 474 US 52, 56 [1985] [internal quotation marks and citations omitted]). Defendants who seek to challenge the voluntary and intelligent character of their guilty pleas on the ground of ineffective assistance of counsel must establish that defense counsel's advice was not within the standard set forth in Strickland v Washington (466 US 668 [1984]) (see Hill, 474 US at 58

).

In Strickland, the Supreme Court adopted a two-part test for evaluating claims of ineffective assistance of counsel generally. A "defendant must show that counsel's performance was deficient," and "that the deficient performance prejudiced the defense" (Strickland, 466 US at 687). The first prong of the Strickland test is essentially a restatement of attorney competence, which requires a showing that counsel's representation fell below an objective standard of reasonableness (Hill, 474 US at 58). The second prong, also known as the prejudice prong, "focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process" (Hill, 474 US at 59). In order to satisfy this prong, a "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" (Hill, 474 US at 59).

Under certain circumstances, the prejudice inquiry, in a case where a defendant has entered a guilty plea, will require a prediction of the outcome of possible litigation, which "will closely resemble the inquiry engaged in by courts reviewing ineffective-assistance challenges to convictions obtained through a trial" (Hill, 474 US at 59). The United States Supreme Court's examples of circumstances requiring a prediction analysis are the following: (1) "where the alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence" and (2) "where the alleged error of counsel is a failure to advise the defendant of a potential affirmative defense to the crime charged" (Hill, 474 US at 59). The prejudice assessment, in each of these examples, would necessarily turn on whether the evidence, had it been put before the factfinder, "likely would have changed the outcome of a trial" (Hill, 474 US at 59).

Relying solely on federal constitutional law, defendant argues that his counsel's incorrect advice about the consequences of his guilty plea constitutes ineffective assistance of counsel.² The mere failure to advise a defendant of the possibility of deportation does not constitute...