People v. Nunez

• Decision Date: 15 December 2010
• Parties: The PEOPLE of the State of New York, Respondent, v. Roberto NUNEZ, Appellant.
• Court: New York Supreme Court — Appellate Term

917 N.Y.S.2d 806
30 Misc.3d 55

The PEOPLE of the State of New York, Respondent,
v.
Roberto NUNEZ, Appellant.

Supreme Court, Appellate Term, New York.
9th and 10th Judicial Districts.

Dec. 15, 2010.

917 N.Y.S.2d 807

Jonathan I. Edelstein, New York City, for appellant.

Present: IANNACCI, J.P., NICOLAI and MOLIA, JJ.

30 Misc.3d 56

ORDERED that the order is reversed, on the law, and the matter is remitted to the District Court for a hearing and determination de novo of defendant's motion to vacate the judgment of conviction on the limited issue of whether defendant received the ineffective assistance of counsel because his attorney misadvised him or failed to advise him regarding the immigration consequences of his plea.

In 1997, defendant pleaded guilty to criminal possession of a controlled substance in the seventh degree (

917 N.Y.S.2d 808

Penal Law § 220.03) and was sentenced to a 60-day term of imprisonment. In 2009, defendant moved, pursuant to CPL 440.10(1)(h), to vacate the judgment of conviction on the ground that he had received the ineffective assistance of counsel because his attorney had provided him with incorrect advice regarding the immigration consequences of his guilty plea and because his attorney had a conflict of interest, as the attorney was employed by the same law firm which had previously represented the person arrested with defendant on an unrelated matter. By order dated July 28, 2009, the District Court denied defendant's motion without a hearing. By permission, the instant appeal by defendant ensued.

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 ( see

30 Misc.3d 57

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ) and New York State standards ( see People v. Benevento, 91 N.Y.2d 708, 713, 674 N.Y.S.2d 629, 697 N.E.2d 584 [1998]; People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ). Pursuant to Strickland, a " defendant must show that counsel's performance was deficient ... [and] that the deficient performance prejudiced the defense" ( id. at 687). The first prong of the Strickland test requires a showing that counsel's representation fell below an objective standard of reasonableness ( id.). 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 v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 [1985] ). In order to satisfy the second 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" ( id.).

In Padilla v. Kentucky, 559 U.S. ----, 130 S.Ct. 1473, 176 L.Ed.2d 284 [2010], the defendant, a lawful resident of the United States for over 40 years, faced deportation after pleading guilty to drug charges in Kentucky. In postconviction proceedings, the defendant claimed that his attorney had affirmatively misadvised him of the deportation consequences of a...