Dianne T. Renwick

Pointing to a 2017 U.S. Supreme Court decision, a state appeals court has ruled that a hearing must be held on a convicted defendant's claim of ineffective assistance of counsel after his lawyer failed to tell him that he could be deported based on pleading guilty to a drug-possession count with no jail time attached.

In a split 3-1 decision, a majority panel of the Appellate Division, First Department ruled that Gustavo Lantigua, who in 1998 pleaded guilty in Manhattan Supreme Court to felony drug possession, must be given a hearing on his 2017-brought motion to vacate the conviction on the basis that his then-lawyer misinformed him about the deportation consequences of his plea, despite him allegedly asking his lawyer about possible deportation.

In a signed majority opinion, Justice Dianne Renwick takes on a detailed dissent penned by Justice Troy Webber. And while doing so, Renwick points repeatedly to the U.S. Supreme Court ruling in Lee v. United States, which Renwick says draws an important distinction between the standard for an ineffective assistance of counsel claim calling for examining whether a criminal defendant would have pleaded guilty versus examining whether a defendant could have won at a trial already held.

Arguing that Webber "misconstrues the focus of the prejudice inquiry in cases involving guilty pleas," Renwick rules that in March 2017, Manhattan Supreme Court Justice Gilbert Hong erred when he "summarily denied, without a hearing," Lantigua's post-judgment motion claiming ineffective assistance of counsel linked to a plea that "subjected [him] to mandatory deportation."

Renwick, joined by Justices Barbara Kapnick and Angela Mazzarelli, does not grant Lantigua his CPL 440.10 motion to vacate the conviction. Instead, the majority reverses Hong and grants him an evidentiary hearing to be held in the lower court in his motion to vacate. That lesser result—a hearing versus the overturning of the conviction—also plays a role in the majority's analysis.

The motion made in late 2016 or early 2017 by Lantigua, who is represented by Manhattan-based immigration attorney Andrew Friedman, came after he went to Friedman's office seeking help with obtaining a green card, or legal status, in the United States, according to a phone interview with Friedman on Friday.

Friedman said that he had to tell Lantigua that, with the felony conviction sitting on his record, he had been under a silent threat of being deported all these years and that he needed to try to clear the conviction before applying for a green card. That prompted the two of them to file the vacate motion. Lantigua contends that his defense lawyer at the time of a 1998 cocaine-possession charge assured him that he would not be deported if he pleaded guilty because, as a first-time offender, he was facing probation and not jail time, according to Friedman and Renwick's majority opinion.

In motion papers filed in the lower court, Lantigua "supported his claim by, among other things, an unsworn but signed letter by his trial counsel, who admitted that, at the time of defendant's plea, he did not believe that a non-incarceratory sentence would trigger negative immigration consequences because a defendant would not be transferred to immigration custody at the conclusion of a defendant's sentence," Renwick points out. Lantigua has argued that especially because he had family members living in 1998 in the U.S., he would have gone to trial if he had known about the deportation consequences of pleading guilty to the felony.

In analyzing the legal issue before the First Department, Renwick writes in Thursday's opinion that Lantigua's motion to vacate "allegations are sufficient to warrant a hearing as to whether defendant [Lantigua] was prejudiced by the [1998 defense] attorney's misadvice."

"Initially, we reject the trial court's argument, adopted by the dissent, that there is no reasonable possibility that defendant's allegation is true, that he would not have pleaded guilty had he been aware that his plea subjected him to mandatory deportation," Renwick further writes.

She then adds that "the dissent relies entirely on the supposition that the People's [criminal cocaine-possession] case was strong and defendant had not demonstrated a viable defense," and adds that "in doing so, the dissent, like the court [via Justice Hong] below … misconstrues the focus of the prejudice inquiry in cases involving guilty pleas."

The U.S. Supreme Court in Lee, says Renwick, "drew an important distinction between ineffective assistance that occurs during a trial and ineffective assistance that occurs during plea negotiations."

"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," writes Renwick. Instead, she writes, "a court should … consider whether a defendant would not have pleaded guilty if he had been correctly advised of the deportation consequences of the plea," and "thus, the focus remains on the defendant's decision-making, which necessarily requires a full development of all the pertinent facts."

Later in the opinion, the majority concludes that in the case of Lantigua's motion, he had given "sufficient evidentiary detail why avoiding deportation was important to him: His desire to remain with his immediate family required him to remain in the United States. Further, the unique plea calculus for defendant included his understanding that if convicted at trial, he most likely faced a relatively short period of incarceration as a first felony offender."

Still, Renwick also notes that "factors such as the length of time defendant had been present in this country and his ties to his country of origin, which are absent from the record, are important to evaluating whether there is a reasonable probability that defendant was prejudiced by the misadvice." But, she says, the appellate question before the First Department "now is whether defendant has made sufficient allegations to warrant an evidentiary hearing, not whether defendant has satisfied his burden of proof."

In contrast, Webber, in dissent, writes in part that "contrary to the majority's arguments, the Supreme Court's analysis in Lee v. United States … does not support" granting Lantigua a motion to vacate hearing.

"In Lee," writes Webber, the high court "held that Lee had provided 'substantial and uncontroverted evidence' … establishing that he would not have accepted a plea had he known it would lead to deportation. "

But Lantigua, says Webber, "made no such showing" and instead "relies on general personal reasons why he would not have pled guilty" while failing "to set forth any basis of a defense or mention of what trial strategy he believed could have successfully overcome the [1998 drug] case against him.

Moreover, writes Webber, "the majority concedes … that the chance of success at trial is a determinating factor."

And here, "defendant failed to show that given the evidence of his commission of the crime charged, there was a reasonable likelihood that he would have proceeded to trial; that a trial would have been optimal or strategically plausible or even that it would have been rational to do so." She adds that the notion that Lantigua "would have risked years in prison as opposed to accepting a probationary sentence is all the more unlikely given that defendant was not deported in the 18 years between his plea of guilty and his motion to vacate the judgment of conviction."

Friedman, the appellate lawyer for Lantigua and his immigration counsel as he seeks legal status in the U.S., said in an email late Friday afternoon that he was "very happy with the decision of the First Department in rectifying my client's prior ineffective assistance of counsel and providing him with a second opportunity to reopen his criminal case and legalize his immigration status in the United States."

He added that Lantigua "corroborated his allegations in the initial [motion to vacate] with reference to erroneous immigration advice and proffered a rational argument concerning prejudice."

The Manhattan District Attorney's Office, which represented New York state in the appeal, did not reply to an email seeking comment Friday.