Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on August 21, 2012
Saxe J.P., Sweeny, Moskowitz, Freedman, Manzanet-Daniels, JJ.
Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), rendered November 29, 2007, as amended December 17, 2007, convicting defendant, upon his plea of guilty, of sexual abuse in the first degree, and sentencing him, as a second violent felony offender, to a term of five years, and order, same court and Justice, entered on or about July 8, 2011, which denied defendant's CPL 440.10 motion to vacate the judgment, affirmed. All concur except Saxe, J.P. and Sweeny J. who concur in a separate memorandum by Sweeny, J., Manzanet-Daniels, J. who concurs in a separate memorandum, and Moskowitz and Freedman, JJ. who dissent in a memorandum by Freedman, J. SWEENY, J. (concurring)
The "long-standing test for determining the validity of a guilty plea is whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant" (Hill v Lockhart, 474 US 52, 56  [internal quotation marks omitted). A defendant challenging the propriety of his guilty plea on the ground of ineffective assistance of counsel must meet the two-prong test set out in Strickland v Washington (466 US 668 ). Under Strickland, the "defendant must show that counsel's performance was deficient," and "that the deficient performance prejudiced the defense" (Strickland, 466 US at 687).
In Padilla v Kentucky, ( US , 130 S Ct 1473 ), the Supreme Court held that, in connection with a plea, effective assistance requires the defense counsel to advise a defendant of the immigration consequences of his plea. This was plainly not properly done in this case and the hearing court correctly determined that the first prong of the Strickland test had been met.
However, contrary to the dissent's contention, defendant did not establish that he was prejudiced by his counsel's inadequate advice on the deportation consequences of his guilty plea (see id.) After an evidentiary hearing, the court properly determined that defendant did not demonstrate a "reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial" (Hill v Lockhart, at 59). The dissent accepts defendant's testimony on its face that, had he been advised that he would be deported, he would have rejected the promised sentence of five years and insisted on going to trial, knowing that his sentence exposure would be 14 years. However, the hearing court, which observed all the witnesses, found defendant's testimony, not only in this regard, but overall, to be incredible. Defendant's statements to the immigration authorities that he was unjustly convicted and that he did not commit the crime to which he pleaded guilty were found by the hearing court to undermine defendant's truthfulness. His claims that he did not understand the terms "trial," "sexual contact" or "oath" were found to be additional examples of defendant's lack of candor. The record amply supports the hearing court's conclusion that defendant decided to accept the plea, not because he was defectively advised on the immigration issue, but rather because pleading guilty was the course most advantageous to him. It has been a long-established rule that "great deference must be paid to the findings of fact and determinations of credibility by a hearing court" (People v Rivera, 213 AD2d 281, 281-281 , lv denied 86 NY2d 740 , citing People v Prochilo, 41 NY2d 759, 761 ; see also People v Hickson, 165 AD2d 777 ). We find no reason on the record before us for disturbing the court's credibility determinations. We find it unnecessary to decide any issues relating to the retroactivity of Padilla v Kentucky. MANZANET-DANIELS, J. (concurring)
The motion court's assessment that defendant was not prejudiced by counsel's Strickland violation was eminently sound and amply supported by the record evidence, which showed defendant to be utterly disingenuous and dishonest when discussing both this case and his prior convictions.
The defense's assertion that there were "clear gaps in [defendant's] understanding" of the charges against him is refuted by the record before us. Defendant admitted that he understood the accusation against him was that he had tried to rape his sister-in-law, yet nonetheless claims that when he pleaded guilty he was operating under the erroneous belief that merely grabbing the victim and pushing her out of the door constituted "sexual contact."
Defendant's claim that he did not understand the meaning of sexual contact, and that he was under a misapprehension that "sexual contact" encompassed any contact with a woman, defies common sense and the record evidence. The motion court astutely observed that defendant's definition of sexual contact was "positively Clintonesque" in the "redefining for self-interest of commonly understood human and sexual and legal principles." At the time of the assault, defendant had lived in the United States for 16 years. His claim that "just touching a woman" amounted to sexual conduct punishable by a five-year sentence is palpably ridiculous. If this were the case, just shaking a woman's hand, without her consent, would consign the offender to a state prison sentence.*fn1
The dissent points to defendant's testimony that he was motivated by anger, not sexual desire. However, one motivated solely by anger generally does not "grab [someone] between her pants and her blouse" in order to eject her from the premises.
Defendant was not prejudiced for the further reason that he had been adjudicated a violent predicate felon for a second-degree assault conviction in connection with an attack upon his brother-in-law, as a result of which he was eligible for deportation regardless of the disposition of the instant case. During the course of the prior assault, he pushed his brother-in-law into a stove, punched him in the face, choked him and smashed his head into the wall. He claimed that he "had" to plead guilty in the prior case, despite the fact that he was purportedly defending himself and had a defense to the crime with which he had been charged. I would accordingly affirm the order appealed from. FREEDMAN, J. (dissenting)
I would vacate defendant's plea and thus his conviction because he was deprived of his constitutional right to the effective assistance of counsel. Contrary to the majority, I believe defendant demonstrated that he was prejudiced by his attorney's failure to advise him that a guilty plea would automatically cause him to be deported (see Padilla ...