Bonnie C. Brennan, for appellant.
Hope Korenstein, for respondent.
The order of the Appellate Division should be affirmed.
Based on defendant's alleged attempt to rape his sister-in-law, defendant, a lawful permanent resident of the United States originally from the Dominican Republic, was charged with one count of Attempted Rape in the First Degree, two counts of Sexual Abuse in the First Degree and one count of Attempted Sexual Abuse in the First Degree. During a suppression hearing, defendant pleaded guilty to Sexual Abuse in the First Degree (see Penal Law § 130.65 ) in full satisfaction of the indictment. In exchange for his plea, the court sentenced defendant to a determinate prison term of five years to be followed by five years of post-release supervision.
After sentencing, federal immigration authorities sought to deport defendant based on his conviction in this case. At a removal hearing, a federal immigration judge ordered defendant's removal from the country. Thereafter, defendant, represented by new counsel, filed a motion to vacate his conviction pursuant to CPL 440.10, asserting that the attorney who had represented him at the plea proceeding had been ineffective for failing to inform him that deportation would be mandatory upon his guilty plea. Supreme Court held a hearing on defendant's motion, and defendant, his former attorney and defendant's son testified at that proceeding.
At the end of the hearing, the court denied defendant's post-judgment motion. The court determined that defendant had been confronted with highly compelling reasons to plead guilty because, at the time of his plea, he had learned that the People possessed strong evidence of his guilt, his ties to his family in the United States were strained, and he faced a lengthy prison sentence if convicted after trial. In the court's view, even if defendant had known that he would be deported, he almost certainly would have pleaded guilty to avoid prolonged incarceration upon a conviction after trial, which would still have been followed by deportation. In addition, the court rejected defendant's testimony that he was innocent and had a close relationship with his family, finding those assertions incredible. Thus, the court concluded, although defendant had shown that his attorney's performance had not met reasonable professional standards of competence, defendant had not established the existence of a reasonable probability that, but for counsel's inadequate advice, he would not have pleaded guilty.
Defendant appealed, and a divided panel of the Appellate Division affirmed defendant's judgment of conviction and sentence and the order denying defendant's motion to vacate his plea (see 98 A.D.3d 449, 449-458 [1st Dept 2012]). In two separate concurring opinions, three Justices determined that the hearing court's factual and credibility findings were supported by the record, and that "defendant did not establish that he was prejudiced by his counsel's inadequate advice on the deportation consequences of his guilty plea" because "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'" (id. at 450 [Saxe, J., concurring], quoting Hill v Lockhart, 474 U.S. 52, 59 ; see also id. at 450-451 [Manzanet-Daniels, J., concurring]).
Two Justices dissented and voted to reverse because, in their view, defendant had established the requisite prejudice. In particular, the dissenters opined, defendant's testimony showed that he had pleaded guilty in order to "minimize his separation from his children" (id. at 457 [Freedman, J., dissenting]). The dissenters further asserted that the hearing court's findings of fact and credibility determinations were unsupported by the record (id.). A Justice of the Appellate Division granted defendant leave to appeal to this Court, and we affirm.
Under the State and Federal Constitutions, a defendant has the right to the effective assistance of counsel (see U.S. Const, 6th Amend; NY Const, art I, § 6; People v Baldi, 54 N.Y.2d 137, 146 ). Under the Federal Constitution, defense counsel is ineffective when his or her performance "f[a]ll[s] below an objective standard of reasonableness" under "prevailing professional norms" (Strickland v Washington, 466 U.S. 668, 687-688 ). Even if counsel's performance is deficient, however, the defendant's conviction will not be reversed unless "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different" (id. at 694-695). In the plea context, the 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" (Hill v Lockhart, 474 U.S. 52, 59 ; see Roe v Flores-Ortega, 528 U.S. 470, 478 ). Whether the defendant can show such a "reasonable probability" will often turn, as it does here, on credibility determinations which, if they have support in the record, we cannot review (see id.; see generally People v McRay, 51 N.Y.2d 594, 601 ).
In Padilla v Kentucky, the United States Supreme Court applied the Strickland framework to a defense attorney's advice, or lack thereof, regarding the immigration consequences of a guilty plea, reasoning that modern immigration law made the possibility of deportation so central to a non-citizen defendant's decision to plead guilty that defense counsel had to inform the defendant about it prior to his or her guilty plea (see Padilla, 559 U.S. at 363-371; see also People v Haffiz, 19 N.Y.3d 883, 884 ). Specifically, the Court held that counsel "must advise her client regarding the risk of deportation, " but the Court also cautioned that counsel's duty "is more limited" where the "deportation consequences of a particular plea are unclear or uncertain" (Padilla, 559 U.S. at 367-369).
Additionally, the Court observed, "Whether Padilla is entitled to relief on his claim will depend on whether he can satisfy Strickland 's second prong, prejudice, a matter we leave to the Kentucky courts to consider in the first instance" (id. at 369). The Court reiterated that Strickland 's prejudice prong hinged on "whether 'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different'" (id. at 366 [quoting Strickland, 466 U.S. at 694]). In describing the prejudice prong, the Court repeatedly cited Hill v Lockhart and Roe v Flores-Ortega (see Padilla, 559 U.S. at 369-373), both of which described the "reasonable probability" standard of prejudice in the plea context (see Hill, 474 U.S. at 59; see Flores-Ortega, 528 U.S. at 485). The Court further stated that the dissenting Justices' fear of a flood of new litigation resulting from the Court's decision was unfounded because "to obtain relief on this type of claim, a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances" (Padilla, 559 U.S. at 372).
Here, defendant seizes on the language quoted above to claim that Padilla announced a new "rationality" test for prejudice under the Strickland framework, and he argues that the hearing court violated his federal constitutional rights by failing to apply that standard. But, Padilla did not delineate a new standard for prejudice under Strickland. The Padilla Court repeatedly cited cases setting forth the traditional "reasonable probability" test for prejudice, and the Court's comment about "rational[ity] under the circumstances" (Padilla, 559 U.S. at 372) appears to be a simple rephrasing of the existing rule described in Strickland, Hill and their progeny. Furthermore, any language in the Padilla opinion altering the prejudice standard would be dicta because the Supreme Court decided that case based solely on the performance prong of the Strickland framework without conducting a prejudice analysis; in fact, the Court expressly left the resolution of the prejudice issue to the Kentucky Supreme Court on remand (see Padilla, 559 U.S. at 369). Significantly, too, after Padilla, the Supreme Court has continued to apply the "reasonable probability" test for prejudice to ineffective assistance claims in the plea context (see Missouri v Frye, __US__, 132 S.Ct. 1399, 1410 ; Lafler v Cooper, __US__, 132 S.Ct. 1376, 1384-1385 ). Thus, Padilla has not diluted defendant's burden to demonstrate a reasonable probability that he would not have pleaded guilty but for counsel's poor advice.
Moreover, upon reviewing the record, we conclude that there is support for the lower courts' determination that defendant failed to show 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 (see Padilla, 559 U.S. at 366, 372; Strickland, 466 U.S. at 694-695; People v McDonald, 1 N.Y.3d 109, 114 ; compare Pilla v United States, 668 F.3d 368, 372-373 [6th Cir 2012], with United States v Akinsade, 686 F.3d 248, 250-256 [4th Cir 2012]). ...