Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on November 2, 2011
PRESENT: PESCE, P.J., GOLIA and STEINHARDT, JJ
Appeal, by permission, from an order of the Criminal Court of the City of New York, Queens County (Robert M. Raciti, J.), dated July 19, 2009 (sic; the order is mistakenly dated 2009 rather than 2010). The order denied defendant's motion to vacate a judgment convicting him, upon his plea of guilty, of criminal possession of a controlled substance in the seventh degree.
ORDERED that the order is reversed, on the law, and the matter is remitted to the Criminal Court for a determination de novo, following a hearing, of defendant's motion to vacate the judgment of conviction.
In May 2007, defendant and two co-defendants were each charged with a single count of criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03). The accusatory instrument alleged that cocaine had been recovered from the console and the passenger-side floor of a motor vehicle in which defendant and the two co-defendants had been sitting. Thereafter, defendant pleaded guilty to criminal possession of a controlled substance in the seventh degree, as well as to a charge from another docket, and was sentenced to concurrent 30-day terms of imprisonment. The co-defendants also pleaded guilty, and received conditional discharges. At the time that defendant pleaded guilty, the attorney who represented him also represented the two co-defendants. The Criminal Court made no inquiry into the potential risks involved in such a simultaneous representation (see People v Gomberg, 38 NY2d 307 ).
Defendant subsequently moved, pursuant to CPL 440.10, to vacate the judgment of conviction on the grounds that his plea was not knowing and voluntary - - because he thought that he was pleading guilty to a marijuana charge, which is what his attorney had allegedly told him would be his plea - - and that he had received the ineffective assistance of counsel because his attorney had misadvised him regarding the immigration consequences of his guilty plea, had a conflict of interest since he had simultaneously represented the co-defendants, and had failed to advise him of his right to move for an extension of time to file a notice of appeal from the judgment of conviction. By order dated July 19, 2009, the Criminal Court denied defendant's motion without a hearing. This court granted defendant leave to appeal (see CPL 450.15 ).
When a defendant seeks to challenge his guilty plea on the ground of ineffective assistance of counsel, he must demonstrate that either the federal standard (see Strickland v Washington, 466 US 669 ) or the New York State standard (see People v Benevento, 91 NY2d 708, 713 ; People v Baldi, 54 NY2d 137 ) of effective representation has not been met. Pursuant to Strickland, a "defendant must show that counsel's performance was deficient . . . [and] that the deficient performance prejudiced the defense" (id. at 687). The first prong of the Strickland test requires a showing that counsel's representation fell below an objective standard of reasonableness (id.). The second prong, also known as the prejudice prong, "focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process" (Hill v Lockhart, 474 US 52, 59 ). In order to satisfy the second prong, a "defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial" (id.).
Defendant's papers in support of his CPL 440.10 motion to vacate the judgment of conviction show that issues of fact exist as to whether his plea was knowing and voluntary and as to whether he received the ineffective assistance of counsel. However, since the allegations in the motion papers were neither conceded by the People to be true nor "conclusively substantiated by unquestionable documentary proof" (CPL 440.30  [c]), in order for the Criminal Court to make the required "findings of fact essential to the determination" of the motion (CPL 440.30 ), a hearing is necessary. We note that since defendant's CPL 440.10 motion did not raise his appellate argument that his attorney had failed to inform him of his right to appeal, that argument is unpreserved for appellate review.
Accordingly, the order is reversed and the matter is remitted to the Criminal Court for a determination de novo, following a hearing, of defendant's motion to vacate the judgment of conviction.
Pesce, P.J., and Steinhardt, J., concur.
Golia, J., concurs in a separate memorandum.
Golia, J., concurs in the following ...