People v. P
2018 NY Slip Op 05960
August 30, 2018
Order
The order which was entered on 11/30/11 denied the defendant’s motion pursuant to CPL 440.10 to vacate judgment.
The defendant plead guilty to attempted criminal sale of a controlled substance in the 3d degree. During the time of his plea, he was a US citizen. He filed a motion 17 years later after authorities started proceedings to deport him to Panama. He was told that because he had been in the US for a prolonged period of time, his plea wouldn’t have adverse consequences to his immigration status.
The motion court accepted this assertion and determined that he had satisfied one prong of a two-part test for an argument that he had ineffective counsel which means that his counsel’s services fell below the reasonable standard of care (Strickland v WA 466 US 668, 688 [1984].
The second prong of the test is whether there is a reasonable probability that without the counsel’s errors, the proceeding would have been different.
The court called for a hearing to determine the potential prejudicial effect of the defense counsel’s alleged error.
The hearing court denied the CPL 440.10 motion. The court agreed that the first prong of the test had been satisfied, but not the second. The court felt that the defendant wasn’t credible. He failed to meet the burden of proof by a preponderance of the evidence that his legal counsel was indeed ineffective and but for his own error the result would have been different.
In 2012 the defendant was deported.
The defendant argued that the hearing court used the wrong evidentiary standard. His position was that the only question is whether there was a reasonable probability that he would have gone to trial had he known how his pleading affected him.
By using the preponderance of the evidence, the court combined an incorrect evidentiary standard with a correct one. The court said this argument had merit and was supported by precedent in US v Dominguez Benitez 542 US 83n9 [2004].
The court said that regardless, this isn’t enough to reverse the decision. The court said that the only witness was considered not credible, to which the court took great deference. This lack of credibility negates any further agreement.
This adverse credibility finding would also defeat the defendant’s claim of ineffective counsel under NY and federal law. There is no need for analysis under People v. Benevento 91 NY2d 708.
The test for ineffective counsel was discussed in the case Strickland v WA 1984, where the court established that the counsel’s failure to explain the consequences of a sentence does amount to ineffective counsel. It is not required, however, that the counsel explain the collateral consequences of a lawsuit.
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