People v Diallo

People v Diallo 2013 NY Slip Op 08472 Decided on December 19, 2013 Appellate Division, Third Department Spain, J., J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: December 19, 2013
104609

[*1]THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v

THIERNO M. DIALLO, Appellant.

Calendar Date: November 18, 2013
Before: Stein, J.P., McCarthy, Spain and Egan Jr., JJ.


R. Graham McNamara, Glenville, for appellant.
Andrew J. Wylie, District Attorney, Plattsburgh
(Timothy Blatchley of counsel), for respondent.




Spain, J.

Appeal, by permission, from an order of the County Court of Clinton County (Ryan, J.), entered September 14, 2011, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment convicting him of the crime of criminal possession of a controlled substance in the third degree.

In October 2008, defendant pleaded guilty to criminal possession of a controlled substance in the third degree in satisfaction of two indictments and waived his right to appeal. On direct appeal, this Court affirmed, rejecting, among other arguments, defendant's limited claim that his plea was involuntary based upon the failure of County Court and his trial counsel to advise him on the record that deportation was a possible consequence of his conviction (88 AD3d 1152 [2011], lv denied 18 NY3d 993 [2012]). Applying Padilla v Kentucky (559 US 356 [2010]), we concluded that while "the failure of counsel to advise a defendant of the possibility of deportation as a result of his or her plea constitutes the ineffective assistance of counsel," Padilla did not require — as defendant narrowly argued — that the advisement occur on the record (88 AD3d at 1153). While his direct appeal was pending, defendant moved to vacate the judgment of conviction pursuant to CPL 440.10 (1) (h), contending that he was denied the right to the effective assistance of counsel. County Court denied the motion without a hearing on the [*2]basis that the direct appeal was pending. By permission of this Court, defendant now appeals.[FN1]

Initially, defendant's CPL 440.10 motion presents an issue not raised or raisable on direct appeal, namely, that he was denied the effective assistance of counsel based upon the affirmative misstatements of counsel with regard to the potential or mandatory deportation consequences of his plea to a drug possession count rather than to a sale count (see People v McDonald, 1 NY3d 109, 114 [2003]; see also People v Glasgow, 95 AD3d 1367, 1367-1369 [2012], lv denied 20 NY3d 1061 [2013]; People v Reynoso, 88 AD3d 1162, 1163 [2011])[FN2]. Moreover, defendant's motion established that the record on his direct appeal was not sufficient to permit adequate review of the issues surrounding defendant's right to counsel claim and that the facts surrounding this claim need to be further developed (see CPL 440.10 [2] [b])[FN3]. As such, County Court incorrectly denied the motion based upon the pending appeal (see CPL 440.10 [2] [b]; People v Kearney, 78 AD3d 1329, 1330-1331 [2010], lv denied 4 NY3d 854 [2005]; cf. People v Kindred, 100 AD3d 1038, 1041 [2012], lv denied 21 NY3d 913 [2013]; People v Griffin, 115 AD2d 902, 904 [1985], lv denied 67 NY2d 884 [1986]). [*3]

Defendant's motion to vacate sufficiently raises a question as to whether trial counsel provided him with affirmative misinformation regarding the deportation consequences of his guilty plea and adequately alleges facts that, if credited, show a reasonable probability that, but for counsel's erroneous assurances in this regard, defendant would have insisted on going to trial (see Hill v Lockhart, 474 US 52, 59 [1985]; People v Hernandez, ___ NY3d ___, ___, 2013 NY Slip Op 07658, *4 [2013]). Accordingly, defendant is entitled to a hearing on the issues raised in his CPL 440.10 (1) (h) motion and the order must, therefore, be reversed (see People v McDonald, 1 NY3d at 114; People v Glasgow, 95 AD3d at 1368-1369; People v Deyo, 82 AD3d 1503, 1504-1505 [2011], lv denied 17 NY3d 815 [2011]; People v Kearney, 78 AD3d at 1330-1331; People v Williams, 72 AD3d 1347, 1348 [2010]).

Stein, J.P., McCarthy and Egan Jr., JJ., concur.

ORDERED that the order is reversed, on the law, and matter remitted to the County Court of Clinton County for further proceedings not inconsistent with this Court's decision. Footnotes

Footnote 1:While this collateral appeal was pending, the New York Court of Appeals held that a trial court is required, as a matter of due process, to advise all defendants "on the record" that, if they are not United States citizens, "their felony guilty pleas may expose them to deportation" (People v Peque, ___ NY3d ___, ___, 2013 NY Slip Op 07651, *19 [2013]).

Footnote 2:In Chaidez v United States (___ US ___, ___, 133 S Ct 1103, 1106-1113 [2013]), the United States Supreme Court held that the rule stated in Padilla (decided in 2010) does not apply retroactively to persons whose convictions became final before Padilla was decided. Although defendant's conviction here did not become final until 2012, well after Padilla, it is not clear if Padilla applies to defendant's collateral attack in 2011 made while his direct appeal was pending. In any event, "[w]e need not decide whether Padilla is to be applied retroactively to defendant's collateral attack premised upon counsel's alleged affirmative misadvice [because] [a]t the time of defendant's [2008] plea, the New York Court of Appeals had established that counsel's affirmative misrepresentation to a noncitizen regarding the deportation consequences of a contemplated guilty plea constituted deficient performance as required to establish the first prong of an ineffective assistance of counsel claim" (People v Glasgow, 95 AD3d at 1368 n 2 [citations omitted]).

Footnote 3:While the potential deportation consequences were noted in the presentence report and at sentencing, the record on defendant's direct appeal was devoid of information regarding counsel's advice or misadvice to defendant in that regard. Defendant avers in his affidavit in support of his CPL 440.10 motion that he did not have an opportunity to read that report prior to sentencing.