PRITZKER, J.
Calendar Date: December 14, 2023
Angela Kelley, East Greenbush, for appellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent.
Before: Egan Jr., J.P., Pritzker, Ceresia, Fisher and Powers, JJ.
PRITZKER, J.
Appeals (1) from a judgment of the County Court of Schenectady County (Mark J. Caruso, J.), rendered January 28, 2020, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the third degree, and (2) by permission, from an order of said court, entered September 29, 2021, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.
Defendant, a native of Haiti with permanent residence status in the United States, was indicted and charged with criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the fourth degree. In full satisfaction of that indictment, defendant was afforded the opportunity to plead guilty to criminal possession of a controlled substance in the third degree with the understanding that he would be sentenced to a prison term of three years followed by a period of no more than two years of postrelease supervision. The plea agreement also required defendant to waive his right to appeal. Defendant pleaded guilty in conformity with the agreement, and County Court sentenced him to a prison term of three years followed by two years of postrelease supervision.
After defendant unsuccessfully sought to terminate the deportation proceedings commenced against him, defendant moved to vacate the judgment of conviction pursuant to CPL 440.10 contending that he had been denied the effective assistance of counsel - specifically, that counsel failed to apprise him that his conviction of criminal possession of a controlled substance in the third degree constituted an "aggravated felony" within the meaning of 8 USC § 1101 (a) (43) (B) and, hence, rendered his deportation mandatory. The People opposed the requested relief, and County Court denied defendant's motion without a hearing. Defendant appeals from the judgment of conviction and, by permission, from County Court's order denying his motion to vacate.
Preliminarily, the People concede - and our review of the record confirms - that defendant's waiver of the right to appeal is invalid, as the written waiver purports to erect a complete bar to a direct appeal, and County Court's brief oral colloquy was insufficient to convey to defendant that some appellate review survived (see People v Ramjiwan, 209 A.D.3d 1176, 1177 [3d Dept 2022]; People v Mont, 207 A.D.3d 960, 960 [3d Dept 2022]). In the context of defendant's direct appeal, although his challenge to the voluntariness of his plea - predicated upon his asserted failure to fully appreciate the collateral consequences thereof - survives even a valid appeal waiver, this argument is unpreserved for our review; defendant did not move to withdraw his plea despite having an opportunity to do so prior to sentencing, and the narrow exception to the preservation requirement is inapplicable (see People v Katoom, 205 A.D.3d 1132, 1134 [3d Dept 2022]; People v Lopez, 198 A.D.3d 515, 515 [1st Dept 2021], lv denied 38 N.Y.3d 929 [2022]). In any event, defendant's arguments regarding the deportation consequences associated with his plea are more appropriately reviewed in the context of his postconviction submissions (compare People v Disla, 173 A.D.3d 555, 556 [1st Dept 2019]; People v Johnson, 165 A.D.3d 556, 557 [1st Dept 2018]).
Turning to the CPL 440.10 motion, defendant contends that counsel's failure to apprise him that his guilty plea would result in mandatory deportation constituted the ineffective assistance of counsel, thereby warranting vacatur of his plea or, at the very least, a hearing on his motion. "On a motion to vacate a judgment of conviction under CPL 440.10, a hearing is only required if the submissions show that the nonrecord facts sought to be established are material and would entitle the defendant to relief" (People v Baez-Arias, 203 A.D.3d 1409, 1410 [3d Dept 2022] [internal quotation marks and citations omitted], lv denied 38 N.Y.3d 1132 [2022]; see People v Miles, 205 A.D.3d 1222, 1224 [3d Dept 2022], lv denied 38 N.Y.3d 1189 [2022]). "A court may deny a vacatur motion without a hearing if it is based on the defendant's self-serving claims that are contradicted by the record or unsupported by any other evidence" (People v Vargas, 173 A.D.3d 1466, 1468 [3d Dept 2019] [citations omitted], lv denied 34 N.Y.3d 955 [2019]; see People v Stanley, 189 A.D.3d 1818, 1819 [3d Dept 2020]).
"To prevail on a claim of ineffective assistance under the Federal Constitution, a defendant 'must show that counsel's representation fell below an objective standard of reasonableness' and 'that the deficient performance prejudiced the defense'" (People v Abdallah, 153 A.D.3d 1424, 1425 [2d Dept 2017], quoting Strickland v Washington, 466 U.S. 668, 687-688 [1984]). In the context of a plea, the defendant must demonstrate "that there is a reasonable probability that, but for counsel's errors, he or she would not have pleaded guilty and would have insisted on going to trial, or that the outcome of the proceedings would have been different" (People v Abdallah, 153 A.D.3d at 1425 [internal quotation marks, brackets and citation omitted]; see People v Tiger, 207 A.D.3d 574, 576 [2d Dept 2022], lv denied 38 N.Y.3d 1190 [2022]). The standard under the NY Constitution, which requires a defendant to show that he or she was not afforded "meaningful representation" (People v Baldi, 54 N.Y.2d 137, 147 [1981]; see People v Mohan, 215 A.D.3d 766, 767 [2d Dept 2023], lv denied 40 N.Y.3d 930 [2023]), also entails a two-pronged test; the first prong is identical to its federal counterpart but, under the second prong, the "prejudice component 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 [2005] [internal quotation marks and citation omitted]; see People v Alexander, 208 A.D.3d 1247, 1249 [2d Dept 2022]).
"[A] defense attorney deprives a noncitizen defendant of his or her Sixth Amendment right to the effective assistance of counsel by failing to advise, or by misadvising, the defendant about the immigration consequences of a guilty plea" (People v Peque, 22 N.Y.3d 168, 190 [2013], cert denied 574 U.S. 840 [2014]; see People v Baez-Arias, 203 A.D.3d at 1409-1410). Where "the deportation consequences of a particular plea are unclear or uncertain," and the applicable law, in turn, "is not succinct and straightforward..., a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear..., the duty to give correct advice is equally clear" (Padilla v Kentucky, 559 U.S. 356, 369 [2010] [footnote omitted]; see People v Baret, 23 N.Y.3d 777, 797 [2014], cert denied 574 U.S. 1085 [2015]; People v Loaiza, 158 A.D.3d 775, 776 [2d Dept 2018]; People v Abdallah, 153 A.D.3d at 1426; People v Lawrence, 148 A.D.3d 1472, 1473 [3d Dept 2017]).
Although factually distinguishable, to the extent this Court's prior decision in People v Marte-Feliz (192 A.D.3d 1397 [3d Dept 2021]) could be read as holding otherwise, that language should not be followed (see id. at 1398).
During the plea colloquy, County Court - after prompting by the People - advised defendant that his plea to a felony "may result in [his] deportation" and, at the time of sentencing, defense counsel acknowledged that defendant "took a plea with the understanding that there might be some [i]mmigration issues." Similarly, defendant averred in support of his CPL 440.10 motion that defense counsel "said that there was only a possibility that [he] could be deported," and that neither County Court nor defense counsel ever told him "that [he] would be deported if [he] plead[ed] guilty." These advisements were erroneous, and, as in Padilla, defense counsel readily could have ascertained - simply from a reading of the relevant statutes - that defendant's plea to criminal possession of a controlled substance in the third degree rendered deportation presumptively mandatory (see Padilla v Kentucky, 559 U.S. at 368-369) and rendered defendant ineligible for cancellation of an order of removal (see People v Go, 207 A.D.3d 1081, 1083 [4th Dept 2022]; People v Abdallah, 153 A.D.3d at 1426). "Where, as here, defense counsel gives incorrect advice regarding the immigration consequences of a guilty plea, that constitutes ineffective assistance under the first prong of Strickland" (People v Go, 207 A.D.3d at 1083 [citations omitted]; see People v Remigio, 192 A.D.3d 519, 519 [1st Dept 2021]; People v Abdallah, 153 A.D.3d at 1426-1427; see generally People v Terrero, 198 A.D.3d 930, 932 [2d Dept 2021], lv denied 37 N.Y.3d 1165 [2022]; People v Bernard, 195 A.D.3d 740, 742 [2d Dept 2021]; People v Ottey, 175 A.D.3d 1324, 1326 [2d Dept 2019], lv denied 34 N.Y.3d 1018 [2019]).
Our conclusion in this regard is not altered by the fact that defendant's prior convictions of trademark counterfeiting in the third degree, which constituted a crime of moral turpitude, and criminal contempt in the second degree, which involved violation of a protective order, also rendered defendant subject to deportation (see 8 USC § 1227 [a] [2] [A] [i]; [E] [ii]). Defendant's conviction of criminal possession of a controlled substance in the third degree (see Penal Law § 220.16 [1] [intent to sell]) is qualitatively different in that such offense constituted an "aggravated felony" (see 8 USC § 1227 [a] [2] [A] [iii]; [B] [i]), thereby rendering defendant's deportation mandatory (see People v Acosta, 202 A.D.3d 447, 447 [1st Dept 2022]; People v Martinez, 180 A.D.3d 190, 192 [1st Dept 2020], lv denied 35 N.Y.3d 972 [2020]; People v Disla, 173 A.D.3d at 556; see generally People v De La Rosa, 211 A.D.3d 588, 589 [1st Dept 2022]; People v Doumbia, 153 A.D.3d 1139, 1139-1140 [1st Dept 2017]; People v Ricketts-Simpson, 130 A.D.3d 1149, 1151 [3d Dept 2015]), subjecting him to expedited removal proceedings (see 8 USC § 1228 [a] [1], [3]; [c]) and precluding him from seeking cancellation of an order directing his removal from this country (see 8 USC § 1229b [a] [3]; People v Go, 207 A.D.3d at 1083; People v Abdallah, 153 A.D.3d at 1426). Under these circumstances, simply advising defendant that he could be deported was insufficient to discharge counsel's obligation to accurately advise defendant of the mandatory deportation consequences associated with his guilty plea.
With respect to the issue of prejudice, defendant averred that he came to the United States as an asylee in 2000 and, in 2006, his status was adjusted to lawful permanent resident. According to defendant, he elected to plead guilty because counsel advised him "that it was the only way to avoid going to jail for a prolonged period of time, and because [counsel] said [he] would have a chance to prevail if [i]mmigration tried to deport [him]." Had he been aware that "criminal [possession] of a controlled substance in the third degree was a mandatory deportable crime," defendant averred, "[he] would not have plead[ed] guilty and [would have] insisted on going to trial." These averments, coupled with the fact that, at the time of his arrest, defendant had been residing in Schenectady County for eight years, was self-employed as a mechanic and, together with his long-term partner, was the parent of triplets, raise "a question of fact as to whether it was reasonably probable that [he] would not have entered a plea of guilty if he had been correctly advised of the deportation consequences of the plea" (People v Alexander, 208 A.D.3d at 1249). "As defendant sufficiently alleged that counsel provided incorrect information concerning the deportation consequences that would result from [his] guilty plea and that [he] was prejudiced as a result thereof, [he] was entitled to a hearing on... [his] CPL 440.10 motion" (People v Ricketts-Simpson, 130 A.D.3d 1149, 1151-1152 [3d Dept 2015] [citations omitted]; see People v Guzman-Caba, 214 A.D.3d 564, 565-566 [1st Dept 2023]; People v Alexander, 208 A.D.3d at 1249; compare People v Singh, 185 A.D.3d 480, 480 [1st Dept 2020], lv denied 35 N.Y.3d 1070 [2020]; People v Lawrence, 148 A.D.3d at 1474), and this matter is remitted to County Court for that purpose.
Egan, Jr., J.P., Ceresia, Fisher and Powers, JJ., concur.
ORDERED that the judgment is affirmed.
ORDERED that the order is reversed, on the law, and matter remitted to the County Court of Schenectady County for further proceedings not inconsistent with this Court's decision.
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