The People &c.,
2003 NY Int. 135
This appeal raises the question whether, under certain
circumstances, a defense counsel's incorrect advice as to
deportation consequences of a plea may constitute ineffective
assistance of counsel. We answer in the affirmative but conclude
that in the instant case -- where defendant has failed to make
the requisite showing of prejudice due to counsel's incorrect
advice -- defendant was not deprived of the effective assistance
Defendant Bruce McDonald came to the United States from Jamaica and has apparently been a lawful permanent resident of the United States for over 20 years. While in the United States, defendant had three children, all American citizens by birth. His wife is also an American citizen.
In April 1999, an undercover officer of the New York State Police made two controlled buys of marihuana from defendant at a university cafeteria where he was employed. On May 4, 1999, a sealed indictment was filed against defendant in connection with those transactions and he was arrested the following day. During the execution of a search warrant, the police discovered one-third ounce of cocaine, 9.4 ounces of marihuana and an electric scale in defendant's apartment. Thereafter, a superseding eight count indictment was filed against defendant for criminal sale of marihuana in the third degree and criminal possession of marihuana in the fifth degree on both April 26, 1999 and April 28, 1999, and criminal possession of a controlled substance in the third and fourth degrees, criminal use of drug paraphernalia in the second degree and criminal possession of marihuana in the third degree on May 5, 1999.
With the advice of counsel, defendant pleaded guilty to
criminal sale of marihuana in the third degree and criminal
possession of a controlled substance in the third degree in full
Approximately seven weeks later, defendant's trial counsel moved on defendant's behalf to vacate the judgment of conviction under CPL 440.10 (1) (h), contending that defendant had been denied effective assistance of counsel. In a supporting affirmation, trial counsel admitted that he incorrectly advised defendant that his guilty plea "would not result in deportation because of the Defendant's lengthy residence in the United States and the fact [sic] his three children were born and reside in the United States" (emphasis in original). Counsel further admitted that his advice was "plainly in error" as defendant was actually at risk of mandatory deportation upon conviction of any of the felonies charged.
Alleging that, during plea negotiations, the District
The People opposed defendant's motion to vacate the judgment of conviction and sentence. Among other things, the District Attorney denied that he ever told counsel that defendant would not be deported if convicted of the felonies charged, but stated only that he knew very little about immigration matters and that generally long-term residents of the United States had better chances of resisting deportation than short-term residents. According to the People, the District Attorney also recommended that counsel contact INS to discuss the matter. In addition, the People argued that defendant's ineffective assistance of counsel claim should fail because defendant did not make the requisite showing of prejudice as a result of counsel's erroneous advice. Specifically, the People contended that defendant failed to allege that the outcome of the trial would have been any different had defendant not pleaded guilty.
County Court denied defendant's motion without a
hearing for the reasons set forth in the People's response. The
Appellate Division affirmed, holding that
The right to effective assistance of counsel is guaranteed by the Federal and State Constitutions (US Const, 6th Amend; NY Const, art I, § 6). Under the Federal Constitution, the "longstanding test for determining the validity of a guilty plea is whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant" ( Hill v Lockhart, 474 US 52, 56  [quotations and citations omitted]). Defendants who seek to challenge the voluntary and intelligent character of their guilty pleas on the ground of ineffective assistance of counsel must establish that defense counsel's advice was not within the standard set forth in Strickland v Washington (466 US 668 ) ( see Hill, 474 US at 58).
In Strickland, the Supreme Court adopted a two-part
test for evaluating claims of ineffective assistance of counsel
Under certain circumstances, the prejudice inquiry, in
a case where a defendant has entered a guilty plea, will require
a prediction of the outcome of possible litigation, which "will
closely resemble the inquiry engaged in by courts reviewing
ineffective-assistance challenges to convictions obtained through
a trial" ( Hill, 474 US at 59). The United States Supreme Court's
examples of circumstances requiring a prediction analysis are the
following: (1) "where the alleged error of counsel is a failure
to investigate or discover potentially exculpatory evidence" and
(2) "where the alleged error of counsel is a failure to advise
the defendant of a potential affirmative defense to the crime
charged" ( Hill, 474 US at 59). The prejudice assessment, in each
Relying solely on federal constitutional law, defendant argues that his counsel's incorrect advice about the consequences of his guilty plea constitutes ineffective assistance of counsel. The mere failure to advise a defendant of the possibility of deportation does not constitute ineffective assistance of counsel ( see People v Ford, , 86 NY2d 397, 404 ; see also United States v Del Rosario, 902 F2d 55, 59 [DC Cir 1990], cert denied 498 US 942). However, governed by Strickland, some federal courts have held that affirmative misstatements by defense counsel may, under certain circumstances, constitute ineffective assistance of counsel ( see United States v Couto, 311 F3d 179, 188 [2d Cir 2002]; see also United States v Campbell, 778 F2d 764, 768-769 [11th Cir 1985]; Downs-Morgan v United States, 765 F2d 1534, 1540-1541 [11th Cir 1985).
Applying the rule as articulated by the federal
circuits, defendant has met the first prong of the Strickland
test in that trial counsel admits that he incorrectly advised his
Hence, the success of defendant's ineffective assistance of counsel claim rests on whether his allegations meet the second requirement of Strickland -- the requisite showing of prejudice. Contrary to the People's contention, and the Appellate Division's holding below, the prejudice inquiry here does not necessitate a prediction analysis as to the likely outcome of the proceeding. Defendant does not allege errors concerning the failure to investigate or discover potentially exculpatory evidence or the failure of counsel to advise him as to affirmative defenses. To establish ineffective assistance of counsel, defendant's allegations must be sufficient to "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, 474 US at 59).
The sufficiency of defendant's factual allegations as
to prejudice should be evaluated with reference to the face of
the pleadings, the context of the motion and defendant's access
to information ( see People v Mendoza, , 82 NY2d 415, 426 1993]).
Given that this is not an instance where defendant's lack of access to information precluded more specific factual allegations, defendant was required to allege necessary facts to support his motion to vacate the judgment of conviction ( see Mendoza, 82 NY2d at 429). Because he failed to make a prima facie showing of prejudice, the Appellate Division did not err in denying his motion to vacate the judgment of conviction without a hearing.
Accordingly, the Appellate Division order should be affirmed.
1 Defendant's maximum exposure, had he gone to trial, would have been a sentence of 25 years imprisonment if convicted as charged of the class B felonies ( see Penal Law § 70.00  [b]) with the potential for consecutive sentences on the two sale counts (Penal Law § 70.25).
2 As a matter of state constitutional law, this Court has consistently applied our "meaningful representation" standard to ineffective assistance of counsel claims ( see People v Henry, , 95 NY2d 563, 565 ; see also People v Benevento, , 91 NY2d 708, 713 ; People v Baldi, , 54 NY2d 137, 147 ).