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Ineffective Assistance, Criminal Appeals/Post-Motion Hearings


The New York Criminal Defendant was represented by counsel who he alleged was ineffective. One often hears gripes about the attorney representing the accused of criminal charges. New York Criminal Defense, Florida Criminal Defense and Federal Criminal Defense are all governed by standards that require a criminal defense attorney to be versed in the collateral consequence of deportation.


Former criminal defendants who are facing deportation often rely upon the appellate and post-conviction motions to relieve themselves of the criminal conviction that results in deportation. These claims are often made by those facing significant collateral consequences, such as deportation, are called ineffective assistance of counsel claims. New York Criminal Defendants have rights and protections above those facing federal criminal charges and People v Lantigua, 2020 NY Slip Op 02557 evaluates ineffective assistance of counsel regarding a guilty plea that subjected defendant to mandatory deportation.


The Court recites the facts of People v Lantigua, 2020 NY Slip Op 02557 as follows:

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....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 US 356, 367-369 [2010], citing 8 USC § 1227[a][2][B][i];see also People v McDonald, 1 NY3d 109, 113-115 [2003];People v Mebuin, 158 AD3d 121, 126 [1st Dept 2017];People v Doumbia, 153 AD3d 1139, 1140 [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 (US Const Amend VI; NY Const art I, § 6).

The legal standard for ineffective assistance of counsel for a New York Criminal Defendant is as follows:

A defendant has the right to the effective assistance of counsel before deciding whether to plead guilty (see US Const amend VI; NY Const, art I, § 6;Padilla v Kentucky, 559 US at 364). InPadilla, 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;see People v Haffiz, 19 NY3d 883, 884 [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 US 668 [1984]; see Padilla, 559 US at 369;People v Hernandez, 22 NY3d 972, 975 [2013],cert denied 572 US 1070 [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 would have insisted on going to trial (Lafler v Cooper, 566 US 156, 163 [2012];Hill v Lockhart, 474 US 52, 59 [1985];People v McDonald, 1 NY3d at 113-114).

Rather than evaluate the claim, the First Judicial Department finds that the lower court erred in summarily denying this post-disposition claim for relief. In criminal appeals and criminal motions, the record is important. 440 Motions: Under Criminal Procedure Law Section 440.30(4)(d) the court can simply deny the conclusions set forth without a hearing. "This provision, which permits a trial court to reach the merits of a post-judgment motion without a hearing, is designed to weed out manufactured claims premised on nothing more than a defendant's self-serving affidavit" Id. (citing People v MacKenzie, 224 AD2d at 173)). Over a dissent, the majority grants a hearing to the Defendant.


The criminal defendant, through counsel, sets forth the basis for which a hearing should be granted: "at the time of the plea, [the Defendant] had a misconception about immigration consequences in a case like defendant's. [Defense] Counsel further admitted that when a defendant inquired, he would either refer the defendant to an immigration lawyer, or convey the inaccurate information he possessed at the time to his client." This provides a strong inference that the Defendant should obtain a hearing on whether he was denied the effective assistance of counsel by his New York Criminal Defense Attorney.


The United States Supreme Court issued a decision that strongly supports the finding of the majority of the First Judicial Department and for which Zachary Segal and I wrote an article discussing the same: Lee v United States explained, amounts to an averment that counsel's " deficient performance arguably led not to a judicial proceeding of disputed reliability, but rather to the forfeiture of a proceeding itself'" (Lee, 137 S Ct at 1965, quoting Flores-Ortega, 528 US at 483). When a defendant alleges that his counsel's deficient performance led him to accept a guilty plea rather than go to trial, a court does not ask whether, had he gone to trial, the result of that trial would have been different than the result of the plea bargain (id.). "That is because, while we ordinarily apply a strong presumption of reliability to judicial proceedings, a court cannot accord' any such presumption to judicial proceedings that never took place." Lee at 1965 (quoting Flores-Ortega, 528 US at 482-483). In advising one's clients, a criminal defense attorney cannot delegate or forget its responsibility to provide proper legal advise as to deportation. The First Department notes that "A court should instead consider whether a defendant would not have pleaded guilty if he had been correctly advised of the deportation consequences of the plea" consistent with the Jae Lee case decided by the Supreme Court of the United States.


The case is People v Lantigua, 2020 NY Slip Op 02557 and it concludes with "Accordingly, the order of the Supreme Court, New York County (Gilbert C. Hong, J.), entered on or about March 27, 2017, which denied defendant's CPL 440.10 motion to vacate a judgment of conviction rendered November 5, 1998, should be reversed, on the law, and the matter remanded for a hearing on defendant's claim of ineffective assistance of counsel and prejudice by such misadvice, and for a decision de novo on the motion."


Criminal Defense, Criminal Appeals and Complex Litigation: Cory H. Morris, Esq. New York and Florida, Injury, Addiction, Accident, Call the Law Offices of Cory H. Morris, 631-450-2515 (NYS) (954) 998-2918 (FLA)

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