Appeal from an order of the District Court of Suffolk County, First District (James P. Flanagan, J.), dated January 27, 2011.
Decided on December 24, 2012
Appellate Term, Second Department
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This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: LaSALLE, J.P., MOLIA and IANNACCI, JJ
The order granted defendant's motion to vacate judgments convicting him, upon his pleas of guilty, of attempted menacing in the second degree.
ORDERED that the order is affirmed.
Following defendant's pleas of guilty, judgments were rendered on December 12, 2007 convicting defendant of two separate charges of attempted menacing in the second degree (Penal Law §§ 110.00, 120.14). Defendant was sentenced to fines and a term of probation. Thereafter, defendant moved, pursuant to CPL 440.10, to vacate the judgments of conviction on the ground that he had received the ineffective assistance of counsel because his attorney had failed to advise him regarding the immigration consequences of his guilty plea. By order dated January 27, 2011, the District Court, following a hearing, granted defendant's motion. This appeal by the People ensued.
In People v Nunez (30 Misc 3d 55 ), this court ruled that the holding of Padilla v Kentucky (559 US , 130 S Ct 1473 ), which provides that a defense counsel must inform his client, at the very least, that immigration consequences may result from his guilty plea, applies retroactively (see also People v Baret, 99 AD3d 408 ). 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.
Here, defendant satisfied the federal standard. Under the federal standard, a "defendant must show that counsel's performance was deficient . . . [and] that the deficient performance prejudiced the defense" (Strickland, 466 US 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 ).
A review of the record indicates that, at the hearing, defendant testified that he had immigrated to the United States, in 1999, from Ecuador, when he was 10 years old at which time his parents lived on Long Island. Defendant received permanent residence alien status in 2000. In addition, defendant unequivocally testified that, had he known that he would be deported, he would have gone to trial and fought the charges even if it were likely that he would have been sentenced to a period of incarceration were he convicted. In light of the fact that defendant faced a maximum period of incarceration of one year on each charge, had spent the majority of his life in the United States, and established his strong ties to the United States, the court did not improvidently exercise its discretion in finding that there was a reasonable probability that defendant would have insisted on going to trial to try to avoid deportation even at the risk of his being found guilty and sentenced to a period of incarceration (see People v Picca, 97 AD3d 170 ).
Accordingly, the order is affirmed.
LaSalle, J.P., Molia and Iannacci, JJ., concur. Decision Date: ...