People v. Oouch

• Citation: 948 N.Y.S.2d 453,97 A.D.3d 904,2012 N.Y. Slip Op. 05566
• Parties: The PEOPLE of the State of New York, Respondent, v. Alexander OOUCH, Appellant.
• Decision Date: 12 July 2012
• Court: New York Supreme Court Appellate Division

97 A.D.3d 904
948 N.Y.S.2d 453
2012 N.Y. Slip Op. 05566

The PEOPLE of the State of New York, Respondent,
v.
Alexander OOUCH, Appellant.

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

July 12, 2012.

[948 N.Y.S.2d 454]

Cynthia Feathers, Glens Falls, for appellant.

P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), for respondent.

Before: MERCURE, J.P., ROSE, KAVANAGH, McCARTHY and EGAN JR., JJ.

ROSE, J.

[97 A.D.3d 904]Appeal, by permission, from an order of the County Court of Albany County (Breslin, J.), entered December 8, 2011, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment convicting him of the crimes of use of a child in a sexual performance and possession of a sexual performance by a child, without a hearing.

Defendant, a Russian citizen who migrated to this country as a child in 1993, pleaded guilty in 2008 to use of a child in a sexual performance and possession of a sexual performance by a child. He was sentenced to an aggregate term of imprisonment of nine years, with three years of postrelease supervision. When the U.S. Immigration and Naturalization Service later informed defendant that he would be deported to Russia, he moved pursuant to CPL 440.10 to vacate the judgment of conviction based [97 A.D.3d 905]upon, among other things, the ineffectiveness of his counsel in failing to advise him of the deportation consequences of his guilty plea. County Court denied the motion without a hearing and, by permission, defendant appeals.

There is no dispute that the crime of use of a child in a sexual performance is considered “aggravated” so as to require mandatory deportation ( see8 USC § 1101[a][43][A]; § 1227[a][2][A][iii]; 18 USC § 3509[a] [8]; Penal Law § 263.05). If defense counsel was aware of defendant's immigration status and failed to inform him that he was pleading guilty to a deportable offense, then counsel's representation would fall below an objective standard of reasonableness and thereby satisfy the first prong of the test for determining whether defendant was deprived of his constitutional right to the effective assistance of counsel ( see Padilla v. Kentucky, 559 U.S. ––––, ––––, 130 S.Ct. 1473, 1482–1484, 176 L.Ed.2d 284 [2010];

[948 N.Y.S.2d 455]

Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984];People v. Carty, 96 A.D.3d 1093, 1093–1094, 947 N.Y.S.2d 617 [2012] ). The second prong of this test requires a determination of...