Appeal from an amended order of the District Court of Suffolk County, First District (Joseph A. Santorelli, J.), dated July 6, 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This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on March 15, 2013
PRESENT: NICOLAI, P.J., IANNACCI and LaSALLE, JJ
The order, following a hearing, granted defendant's motion, pursuant to CPL 440.10, to vacate a judgment convicting defendant, upon his plea of guilty, of sexual misconduct.
ORDERED that, on the court's own motion, the notice of appeal from the order of the same court dated July 22, 2010 is deemed a premature notice of appeal from the amended order dated July 6, 2012 (see CPL 460.10 ); and it is further,
ORDERED that the amended order is affirmed.
Defendant pleaded guilty to sexual misconduct (Penal Law § 130.20 ) and was sentenced on February 5, 1999 to three years' probation. In December 2009, defendant moved, pursuant to CPL 440.10 (1) (h), to vacate the judgment of conviction on the ground that he had been denied his right to the effective assistance of counsel because his attorney had provided him with the wrong advice regarding the consequences of his plea with respect to his immigration status. The District Court, after a hearing, granted the motion. By decision and order of this court dated December 27, 2011, the appeal was held in abeyance and the matter was remitted to the District Court to set forth its findings of fact, conclusions of law and the reasons for its determination (People v Valle, 34 Misc 3d 138[A], 2011 NY Slip Op 52415[U] [App Term, 9th & 10th Jud Dists 2011]). As a result, the District Court issued an amended order dated July 6, 2012, from which we deem the appeal to have been taken.
On appeal, the People contend that defendant was not denied his right to the effective assistance of counsel under the Federal and State Constitutions.
A defendant's right to the effective assistance of counsel is guaranteed by both the Federal and State Constitutions (US Const, 6th Amend; NY Const, art I, § 6). To prevail on a federal claim of ineffective assistance of counsel, a defendant must demonstrate both that counsel's performance was deficient and that the deficient performance prejudiced the defendant (Strickland v Washington, 466 US 668 ). Prejudice exists when there is a reasonable probability that, but for counsel's errors, the defendant would not have pleaded guilty and would have insisted on going to trial (see Hill v Lockhart, 474 US 52, 59 ). Here, defendant's sworn allegation that his attorney gave him incorrect advice that his guilty plea would not affect his immigration status established that his attorney's representation fell below the objective standard of reasonableness under Strickland (see Padilla v Kentucky, ___ US ___, 130 S Ct 1473, 1483-1484 ; People v McDonald, 1 NY3d 109 ; People v Augusto, 22 Misc 3d 140[A], 2009 NY Slip Op 50393[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Additionally, defendant's sworn statement that he would not have pleaded guilty but, rather, would have gone to trial had he been correctly informed of the consequences of his guilty plea, established the second prong of the Strickland test. Thus, we need not consider whether defendant demonstrated that he was deprived of meaningful representation under the New York State standard (see People v Caban, 5 NY3d 143 ).
As we find that defendant has established that he was denied the effective assistance of counsel, the order granting defendant's motion to vacate ...