DECISION AND ORDER Defendant Arcenio Guerrero moves pursuant to Criminal Procedure Law (CPL) section 440.10 (1) (h) for an order to vacate his judgment of conviction and to set aside his sentence based upon ineffectiveness of counsel. In the alternative, he requests a hearing to determine the issues raised. The People oppose the motion.In rendering this decision, the court has reviewed the parties’ written submissions, including: defendant’s Motion and Exhibits, dated July 5, 2018; the People’s Response, September 17, 2018; defendant’s Reply Affirmation, dated May 3, 2013; September 25, 2018 and the court file. For the reasons that follow, defendant’s motion is granted in part and denied in Part.BackgroundDefendant, a native of the Dominican Republic and a lawful permanent resident of the U.S. since May 6, 1996, was stopped on his March 2018 arrival at John F. Kennedy International Airport in New York City following a trip outside the country (Immigration and Naturalization Form I- 862, Exh. A, Def’s Mot.). The United States Immigration and Customs Enforcement Agency (hereinafter, “ICE”) initiated removal proceedings against defendant on or about March 24, 2018, charging him with being inadmissible to the United States and subject to removal on the grounds that he had a conviction for Criminal Possession of a Controlled Substance in the Third Degree under indictment number 03603N-2009, (id.; Immigration and Nationality Act, Section 212 [a] [2] [A] [i] [II]).The court file reflects that on July 16, 2009, defendant was arrested and charged with one count of Criminal Possession of a Controlled Substance in the First Degree (PL §221.21 [1]) and one count of Criminal Possession of a Controlled Substance in the Third Degree (PL §221.16 [1]). Defendant was subsequently indicted for Conspiracy in the second Degree (PL §105.15), Criminal Possession of a Controlled Substance in the First Degree (PL §221.21 [1]), Criminal Possession of a Controlled Substance in the Third Degree (PL §220.16[1]), Criminally Using Drug Paraphernalia in the Second Degree (PL §220.05[2]) and two counts of Criminally Using Drug Paraphernalia in the Second Degree (one count under PL §220.50[2] and one count under (PL §220.50[3]). The court file also indicates that on November 17, 2009 defendant pled guilty to one count of Criminal Possession of a Controlled Substance in the Third Degree (PL §220.16[1]) and on December 8, 2009 was sentenced to a prison term of one year, which defendant had already served.ContentionsDefendant contends that his attorney failed to advise him of the adverse immigration consequences of his November 17, 2009 plea. (Guerrero Affid., Exh. B, Def’s Mot. 14). Defendant argues that he was denied effective assistance of counsel as his attorney, knowing that he was not a U.S. citizen but rather a Lawful Permanent Resident, failed to negotiate for a same-level, weight-based possession disposition that would not result in his mandatory deportation, and failed to advise him of the clear mandatory deportation consequence of his guilty plea. Defendant maintains that had his attorney fully and properly informed him about the immigration consequences of his plea, he would not have accepted the plea, but would have sought a different plea that would not affect his immigration status, or he would have proceeded to trial (Guerrero Affid., Exh. B, Def’s Mot. 15).Defendant contends that he was further deprived of his right to effective counsel because defense counsel, Jorge Sorote, operated under conflicts of interest when he worked in the interest of co-defendants Wilson Minyetty and Angel Minyetty (hereinafter the Minyettys) by: 1) serving as local counsel to and guiding the pro hac vice representation of the Minyettys by their retained counsel in Massachusetts and 2) by representing the defendant and the Minyettys by himself at their sentencing. The defendant argues that these conflicts were never waived by him, whose defense interest as a lawful permanent resident with strong incentive to stay in the United States were opposed to those of the Minyettys who did not have legal status in the United States and sought only to minimize jail time before their deportation back to the Dominican Republic.In the opposing motion, the People contend that defendant received meaningful representation in that he received an advantageous plea and nothing in the record or case file supports defendant’s assertion that an agreement on a “weight-based” plea was likely, or even possible. The People argue that since defendant cannot support a claim of ineffective counsel, the Court need not reach the issue of whether the defendant suffered any prejudice. The People also argue that the defendant received adequate advice regarding immigration consequences of a guilty plea and that any potential conflict of interest between co-defendants was not substantial and that an actual conflict of interest is not supported by the record. Lastly the People oppose hearings on the procedural ground that the defendant’s motion is untimely.Discussion of General Legal PrinciplesBoth the New York State and the United States Constitution provide for the right to effective assistance of counsel (U.S. Const., 6th Amend.; NY Const., Art. 1, §6; CPL 440.10 [1] [h]). In evaluating a matter for ineffective assistance of counsel under the federal constitutional standard, a reviewing court must engage in a two-prong analysis. The court must first determine whether counsel’s performance was deficient such that it “fell below an objective standard of reasonableness”, and second, whether a defendant suffered actual prejudice as a result of counsel’s deficiency such that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different” (Strickland v. Washington, 466 US 668, at 688, 694 [1984]; see People v. Stultz, 2 NY3d 277, 283 [2004]).New York constitutional law applies the same standard as is provided in the first prong of Strickland (People v. Turner, 5 NY3d 476, 480 [2005]); People v. Baldi, 54 NY2d 137 [1981]). In assessing meaningful representation, however, the prejudice component considered by New York courts “focuses on the fairness of the process as a whole rather than its particular impact on the outcome of the case’” (See People v. Ozuma, 7 NY3d 913, 915 [2006], quoting People v. Caban, 5 NY3d 143, 156 [2005]; People v. Benevento, 91 NY2d 708 [1998]).Defendant’s claim that defense counsel failed to advise of mandatory deportation resulting from his pleaIn Padilla v. Kentucky, 130 US 1473, 1483 [2010], the Court addressed counsel’s obligation to advise a client on the possible immigration consequences of a guilty plea: “When the law 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.” Id. at 1483. Padilla also eliminated the distinction between affirmative misrepresentations and omissions, finding that “there is no relevant difference between an act of commission and an act of omission in this context” (id. at 1484).In Chaidez v. United States, 568 US 342, 133 S Ct 1103 [2013], the Supreme Court held that Padilla announced a new rule and that “defendants whose convictions became final prior to Padilla therefore cannot benefit from its holding” (id. at 1113). Where “a defendant does not take a direct appeal from the judgment of conviction and sentence, the judgment becomes final 30 days after sentencing, when the defendant’s automatic right to seek direct appellate review of the judgment expires pursuant to CPL 460.10(1)(a)” (People v. Varenga, 26 NY3d 529, 538 [2015]). In the instant case, defendant’s conviction was entered on December 8, 2009, before Padilla. On February 11, 2010, defendant filed a Motion to Proceed as a Poor Person Appeal in which was granted on July 27, 2010, permitting an appeal to be heard. Padilla was decided in March 2010 while the defendant’s direct appeal was pending, therefore Padilla applies to the instant matter.Here, Mr. Sorote stated in his sworn affidavit that his practice at the time was to discuss “all immigration consequences” with “every criminal defendant” (Sorote Affid., Exh. P, Def’s Mot. 9). He also stated that “his standard advice to noncitizen clients back then, and now, is that a felony conviction could lead to deportation” (id. at 8). The defendant contends that Mr. Sorote “never told him that his guilty plea would result in his automatic and mandatory deportation.As part of the allocution, the Judge asked all defendants if they understood that “if you have any immigration issues, if you’re not here legally, this goes to all three, these pleas could result in deportation.” Based on this statement, anyone with lawful status in the United States, would reasonably infer that the risk of deportation the Court was referring to would not apply to them. The defendant did not have “immigration issues” and was legally in the United States as a lawful permanent resident for over twenty years while his co-defendants did not have legal status in the United States. A reasonable attorney would be sure to advise his client that the risk of deportation would also apply to him as a lawful permanent resident. The record confirms that Mr. Sorote did not speak up to correct or clarify the Court’s warning and its application to the defendant. In Padilla, the Court asserted that silence with respect to immigration consequences “would fundamentally be at odds with the critical obligation of counsel to advise the client of ‘the advantages and the disadvantages of a plea agreement’” (Padilla v. Kentucky at 1484 [2010] quoting Libretti v. United States, 516 US 29, 20- 51.)In the case at hand, the deportation consequence was truly clear and defense counsel’s duty to give correct advice was equally clear” (See Padilla at 1483). The relevant immigration statutes in this case are explicit about the removal consequences for individuals convicted violating any law relating to a controlled substance, and for crimes that constitute an aggravated felony (See Immigration and Nationality Act, Section 212 [a] [2] [A] [i] [II]) (See also 8 USC §1227[a][2][B][i] and 8 USC §1101[a] [43]). The First Department has found ineffective assistance of counsel where counsel failed to advise defendant that his guilty plea to an aggravated felony would result in mandatory deportation. Since an aggravated felony results in mandatory deportation (People v. Doumbia, 153 AD3d 1139, 1139-40, 60 NYS3d 157, 157-58 [NY App Div 2017]; see e.g. United States v. Bonilla, 637 F3d 980, 984 [9th Cir 2011] ["(a) criminal defendant who faces almost certain deportation (for committing an aggravated felony) is entitled to know more than that it is possible that a guilty plea could lead to removal; he is entitled to know that it is a virtual certainty"].This Court concludes that counsel’s failure to advise defendant that his guilty plea to an aggravated felony would result in mandatory deportation was deficient, in that his representation fell below an objective standard of reasonableness.Defendant’s claim that defense counsel failed to negotiate a weight-based possession disposition that would not result in his mandatory deportationDuring plea negotiations defendants are “entitled to the effective assistance of competent counsel” (McMann v. Richardson, 397 US 759, 771, 90 SCt 1441, 25 LEd2d 763 [1970]). In Hill, 474 US, at 58, 106 SCt 366, the Court held “the two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel” (See Lafler v. Cooper, 566 US 156, 162-63, 132 S Ct 1376, 1384, 182 L Ed 2d 398 [2012]). In the instant case, defendant contends that there is no reason to believe that the prosecution would not have offered a same level, weight- based offense and that Mr. Sorote never seemed to negotiate for this. The People oppose these claims as conjectural as they are not based on “competent allegations of fact by anyone with firsthand knowledge. The People also state that the case file was reviewed and that no indication that a weight -based offer had or would be made was found. This assertion however, is directly contradicted by a footnote in the People’s Response Motion which states “there is a note in the file indicating that the People initially offered the defendant three years state prison on a plea to the A2 felony.” In the instant matter a plea to the A2 felony would not have made the defendant mandatorily deportable. The defendant has been a lawful permanent resident for over twenty years and his family resides in the United States.This Court finds that it would not have been unreasonable for the defendant to agree to spend three years in jail and have the opportunity to remain in the United States where he has been a lawful resident for more than twenty years, as opposed to spending one year in jail and permanent exile from the United States. Courts have previously recognized that, preserving the client’s right to remain in the United States may be more important to the client than any potential jail sentence (Padilla v. Kentucky, 130 US at 1483 [2010] [quotations omitted]).Defendant’s contention that he has been prejudiced by defense counsel’s deficient representationIn order to secure the vacatur of his judgment of conviction, the defendant must also establish that there was “a reasonable probability that, if counsel had informed him that he was certain to be deported as a result of his guilty plea, he would not have pleaded guilty and would have gone to trial” (People v. Hernandez, 22 NY3d 972, 976, 978 NYS2d 711). The defendant argues that had immigration consequences been factored into the pleabargaining process, he would not have accepted the plea to an aggravated felony and counsel might have been able to negotiate a different plea agreement that would not have subjected him to mandatory deportation (see People v. Chacko, 99 AD3d 527, 527-528 [2012]). Defendant made a sufficient showing to raise an issue of fact as to whether he could have rationally rejected the plea offer under the circumstances of the case. Moreover, defendant sufficiently alleges that had immigration consequences been factored into the plea-bargaining process, counsel may have been able to negotiate a different plea agreement that would not have resulted in mandatory deportation.On remission, defendant should be afforded the opportunity to move to vacate his plea upon a showing that he has suffered prejudice. Specifically, he must prove that there is a “reasonable probability” that he would not have pleaded guilty had he been made aware of the deportation consequences (see People v. Peque, 22 NY3d 168, 199-200, 980 NYS2d 280, 3 N.E.3d 617 [2016]; see also People v. Corporan, 135 AD3d 485, 22 NYS3d 441; People v. Chacko, 99 AD3d 527, 952 NYS2d 160 [1st Dept 2012], lv. denied 20 NY3d 1060, 962 NYS2d 611, 985 NE2d 921 [2013]).Accordingly, the matter must be remitted to the Supreme Court for a hearing (see People v. Ricketts — Simpson, 130 AD3d 1149, 12 NYS3d 659; People v. Reynoso, 88 AD3d 1162, 931 NYS2d 430) and a new determination thereafter of the defendant’s motion to vacate the judgment of conviction (People v. Pinto, 133 AD3d 787, 792, 21 NYS3d 115, 119 [NY App Div 2015], leave to appeal denied, 27 NY3d 1004, 59 NE3d 1225 [2016]).Dated: October 19, 2018New York, NY
