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People v. Doumbia

Supreme Court of New York, First Department

September 5, 2017

The People of the State of New York, Respondent,
v.
Moussa Doumbia, Defendant-Appellant.

          Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno of counsel), for appellant.

          Cyrus R. Vance, Jr., District Attorney, New York (Philip Morrow of counsel), for respondent.

          Tom, J.P., Renwick, Manzanet-Daniels, Kapnick, JJ.

         Appeal from judgment, Supreme Court, New York County (Renee A. White, J.), rendered April 2, 2013, as amended September 11, 2013, convicting defendant, upon his plea of guilty, of attempted robbery in the second degree, and sentencing him to a term of two years, held in abeyance, and the matter remanded for further proceedings in accordance herewith.

         The existing, unexpanded record is sufficient to establish that defendant received ineffective assistance of counsel. Defendant was deprived of effective assistance when his counsel failed to advise him that his guilty plea to an aggravated felony would result in mandatory deportation. Since an aggravated felony results in mandatory deportation (see People v Corporan, 135 A.D.3d 485');">135 A.D.3d 485, 486 [1st Dept 2016] [a guilty plea to an aggravated felony "triggered mandatory deportation under federal law"], counsel is under a duty to provide clear advice as to that consequence. It is thus ineffective assistance to advise a noncitizen of a mere risk or possibility that he "could be deported" (see e.g. United States v Bonilla, 637 F.3d 980, 984 [9th Cir 2011] ["(a) criminal defendant who faces almost certain deportation (for committing an aggravated felony) is entitled to know more than that it is possible that a guilty plea could lead to removal; he is entitled to know that it is a virtual certainty"]; Encarnacion v State, 295 Ga 660, 663 [Ga 2014] ["where, as here, the law is clear that deportation is mandatory (for the aggravated felony of burglary)... an attorney has a duty to accurately advise his client of that fact" and it is not sufficient that the client is merely advised deportation might occur or was a risk of conviction]).

         The dissent misses the point. Contrary to the dissent's assertion, defendant's "unique circumstances" do not change the fact that defendant was subject to mandatory deportation. Lawyers have an affirmative duty to adequately inform their clients about the serious effects of criminal convictions to the extent, and with as much specificity, as possible. Once a defense attorney determines that a client is not a U.S. citizen, the attorney is required to implement the Sixth Amendment protection to which noncitizen defendants are entitled. As Padilla v Kentucky (559 U.S. 356');">559 U.S. 356');">559 U.S. 356');">559 U.S. 356 [2010]) clarified, if "the deportation consequence is truly clear" from reading the Immigration and Nationality Act, "the duty to give correct advice is equally clear" (559 U.S. at 369).

         In this case, the dissent cannot, and does not, argue that the immigration consequences of defendant's guilty plea to an aggravated felony were truly clear. Instead, the dissent excuses defense counsel's nebulous advice because "it is unclear from the record whether counsel's strategy included pursuing youthful offender status to avoid removal." The dissent also excuses defense counsel's vague advice because defense counsel may have been pursuing other strategy for avoiding the virtual certainty of deportation. In essence, what the dissent proposes is that since there may be avenues available for avoiding even certain deportations, defense counsel only has a duty to inform a noncitizen that there is a risk or possibility that he or she may be deported. Such a standard would not only seriously undermine the Sixth Amendment protection to which noncitizen defendants are entitled, but would also conflict with the concept of a truly informed plea agreement (see Padilla, at 373-374 ["In sum, we have long recognized that the negotiation of a plea bargain is a critical phase of litigation for purposes of the Sixth Amendment right to effective assistance of counsel"]; see generally Strickland v Washington, 466 U.S. 668, 664 [1984] [holding that the right to counsel is protected by the Sixth Amendment, making a claim of ineffective assistance a constitutional claim]).

         On remand, defendant should be afforded the opportunity to move to vacate his plea upon a showing that there is a "reasonable probability" that he would not have pleaded guilty had he been made aware of the deportation consequences of his plea (see People v Peque, 22 N.Y.3d 168, 199-200 [2016]; see also People v Corporan, 135 A.D.3d 485');">135 A.D.3d 485; People v Chacko, 99 A.D.3d 527 [1st Dept 2012], lv denied 20 N.Y.3d 1060');">20 N.Y.3d 1060 [2013]). Accordingly, we remit for the remedy set forth in Peque (22 N.Y.3d at 200-201), and hold the appeal in abeyance for that purpose.

          All concur except Tom, J.P. who dissents in a memorandum as follows:

          TOM, J.P. (dissenting)

         In order to properly review defendant's ineffective assistance claim, a CPL 440.10 motion is needed to establish additional information regarding defense counsel's advice and strategy as to the immigration consequences of defendant's plea agreement. Accordingly, I respectfully dissent.

         Defendant's claim that his attorney rendered ineffective assistance by providing inaccurate or misleading advice about the immigration consequences of his plea is unreviewable on direct appeal because it involves matters not reflected in, or fully explained by, the record (see People v Peque, 22 N.Y.3d 168, 202 [2013], cert denied sub nom. Thomas v New York, 574 U.S. __, 135 S.Ct. 90');">135 S.Ct. 90 [2014]). It was incumbent on defendant to substantiate his claims about his attorney's advice and strategy by filing a CPL 440.10 motion, and the majority fails to address this critical failure.

         In any event, the brief interchange between the attorney and the plea court about whether defendant "could be deported" does not necessarily establish ineffective assistance under Padilla v Kentucky (559 U.S. 356');">559 U.S. 356');">559 U.S. 356');">559 U.S. 356 [2010]), and the present record does not reveal counsel's reasons for proceeding with the plea after he had spoken with and was awaiting a response from an immigration attorney regarding the legal ramifications thereof. Although the crime for which defendant has been convicted has been held to be an "aggravated felony" triggering removal under 8 USC § 1227(a)(2)(A)(iii) (see Brown v Ashcroft, 360 F.3d 346, 353-354 [2d Cir 2004]; see also United States v Hanson, 2017 WL 1040403, *2, 2017 U.S. Dist LEXIS 39167, *4-7 [ED NY 2017]), defense counsel's advice that defendant "could be deported" does not appear to be incorrect. In particular, while counsel may have believed defendant was deportable, it is unclear from the record whether counsel's strategy included pursuing youthful offender status to avoid removal. Nor does the record reveal whether counsel, in conjunction with the immigration attorney, was considering pursuing or awaiting possible relief under the Convention Against Torture (CAT), given defendant's family background of persecution in his native Ivory Coast (see De la Rosa v Holder, 598 F.3d 103, 109 [2d Cir 2010] ["Article 3 of the CAT prohibits the deportation of any person to a country where it is more likely than not that [the individual] would be in danger of being subjected to torture'"]; Garcia v Attorney General of the United States, 271 Fed.Appx 160, 160 [3d Cir 2008] [noting that an aggravated felon could potentially be eligible for relief from removal under CAT]). Counsel may have also been considering that, given his family's history of persecution and the agreed upon sentence of less than five years, defendant could also apply for withholding of removal under 8 USC § 1231(b)(3)(A) if his life or freedom can be jeopardized based on his "race, religion, nationality, membership in a particular social group, or political opinion" (see Bromfield v Mukasey, 543 F.3d 1071');">543 F.3d 1071 [9th Cir 2008]).

         The majority ignores the uncertain nature of immigration proceedings and sets forth an impossible standard for counsel given the circumstances in this case. The record establishes that the court and counsel advised defendant that he could be deported should he plead guilty to these crimes. A more fully fleshed out record is needed to determine what else counsel specifically advised the defendant off-the-record and what the immigration attorney may have advised him before he pleaded guilty. However, since counsel potentially knew that the CAT, youthful offender treatment, or 8 USC § 1231(b)(3)(A) could help defendant avoid deportation, on this record it cannot be expected that counsel would advise defendant it was certain that he would be deported. Indeed, to the contrary, it was not a virtual certainty that defendant would be deported since his age and family circumstances presented the unique aforementioned ...


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