Calendar Date: February 23, 2017
Stephen W. Herrick, Public Defender, Albany (Theresa M.
Suozzi of counsel), for appellant.
David Soares, District Attorney, Albany (Michael C. Wetmore
of counsel), for respondent.
Before: Peters, P.J., McCarthy, Garry, Rose and Aarons, JJ.
MEMORANDUM AND ORDER
by permission, from an order of the Supreme Court (Breslin,
J.), entered May 1, 2014 in Albany County, which denied
defendant's motion pursuant to CPL 440.10 to vacate the
judgment convicting her of the crimes of falsifying business
records in the first degree (nine counts), criminal
possession of a forged instrument in the second degree (three
counts), scheme to defraud in the first degree, failure to
file an income tax return (two counts) and filing a false and
fraudulent tax return (two counts), without a hearing.
a jury trial, defendant was convicted of multiple crimes in
connection with a mortgage fraud scheme that she participated
in with a codefendant, the details of which are set forth in
our decision affirming her criminal conviction (93 A.D.3d 898');">93 A.D.3d 898
, lv denied 19 N.Y.3d 964');">19 N.Y.3d 964 ). She was
sentenced to a lengthy period of imprisonment having an
aggregate term of 6 to 20 years (id. at 899) and
ordered to pay restitution in the amount of $1, 741, 609.98.
Thereafter, as pertinent here, she moved pursuant to CPL
440.10 to vacate the judgment of conviction on the ground
that her trial counsel was ineffective. Supreme Court denied
the motion without a hearing. By permission of this Court,
defendant now appeals.
support of her motion, defendant contended that her counsel
was ineffective for failing to advise her of a favorable plea
offer, mount a defense against the tax charges, accurately
ascertain her immigration status, or request a restitution
hearing. Although a hearing on a CPL 440.10 motion is not
always necessary, a hearing is required where the defendant
bases the motion upon nonrecord facts that are material and,
if established, would entitle the defendant to relief
(see CPL 440.30 ; People v Satterfield,
66 N.Y.2d 796, 799 ; People v Stahl, 141
A.D.3d 962, 966 , lv denied 28 N.Y.3d 1127');">28 N.Y.3d 1127
). Here, defendant's claim concerning counsel's
deficiencies with respect to her immigration status is based
upon information that is outside the record in the criminal
action. In her sworn affidavit, defendant stated that she
spoke to her counsel about her potential deportation, as she
was born in Portugal, but had never applied for United States
citizenship. According to defendant, counsel advised that she
would look into the matter, and represented to defendant that
she had negotiated a guilty plea in another case that did not
include deportation. However, defendant alleges that counsel
failed to address the matter again until following her
conviction, at which point counsel advised that she faced
deportation. Defendant's sister also provided a sworn
affidavit stating that counsel told her that a guilty plea
would put defendant in jeopardy of deportation. The sister
asserts that counsel's associate communicated with an
immigration attorney, but that these communications occurred
only after defendant's sentencing. Ultimately, defendant
was not, in fact, subject to deportation.
maintains that, had counsel properly determined her
immigration status during the course of her representation,
she would likely have entered a guilty plea. She would have
thus been exposed to less prison time than she received after
trial, much like that of her codefendant. We note that
miscommunications in matters such as this have provided a
basis for finding that a defendant was denied the effective
assistance of counsel (see e.g. People v
Ricketts-Simpson, 130 A.D.3d 1149, 1151 ). As
defendant has put forth material facts which, if established,
may entitle her to relief, she should have been afforded a
hearing on her CPL 440.10 motion as to this issue (see
People v Hampton, 64 A.D.3d 872, 876-877 , lv
denied 13 N.Y.3d 796');">13 N.Y.3d 796 ; see also People v
Mosley, 121 A.D.3d 1169, 1173-1174 , lv
denied 24 N.Y.3d 1086');">24 N.Y.3d 1086 ). We decline to address the
other grounds for defendant's CPL 440.10 motion, as they
concern matters that were part of the record in the criminal
action, and could have been raised on direct appeal (see
People v Oddy, 144 A.D.3d 1322, 1324 ; People
v Dickson-Eason, 143 A.D.3d 1013, 1015 , lv
denied 28 N.Y.3d 1123');">28 N.Y.3d 1123 ).
Peters, P.J., McCarthy, Rose and Aarons, JJ., concur.
that the order is reversed, on the law, and matter remitted
to the Supreme Court for further proceedings not ...