Appeal, by permission, from an order of the Criminal Court of the City of New York, Queens County (Pauline A. Mullings, J.), dated September 15, 2010. The order denied defendant's motion to vacate a judgment convicting him, upon his plea of guilty, of criminal possession of a controlled substance in the seventh degree.

ORDERED that the order is reversed, on the law, and the matter is remitted to the Criminal Court for a determination de novo, following a hearing, of defendant's motion to vacate the judgment of conviction.

Defendant was charged with criminal possession of a controlled substance in the third degree (Penal Law § 220.16), criminal possession of a weapon in the fourth degree (Penal Law § 265.01 [1]), criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03) and making an illegal U-turn (Vehicle and Traffic Law § 1160 [e]). In February 2006, the People's motion to dismiss the charge of criminal possession of a controlled substance in the third degree was granted, and defendant pleaded guilty to criminal possession of a controlled substance in the seventh degree in satisfaction of the remaining charges.

In 2010, defendant moved, pursuant to CPL 440.10, to vacate the judgment of conviction on the ground that he had received the ineffective assistance of counsel because his attorney had [*2]misadvised him regarding the immigration consequences of his guilty plea. The Criminal Court denied defendant's motion, without a hearing, and this court granted defendant leave to appeal (CPL 450.15 [1]; People v Hassan, 2011 NY Slip Op 62895[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).

When a defendant seeks to challenge his guilty plea on the ground of ineffective assistance of counsel, he must demonstrate that either the federal standard (see Strickland v Washington, 466 US 669 [1984]) or the New York State standard (see People v Benevento, 91 NY2d 708, 713 [1998]; People v Baldi, 54 NY2d 137 [1981]) of effective representation has not been met. Pursuant to Strickland, a "defendant must show that counsel's performance was deficient . . . [and] that the deficient performance prejudiced the defense" (Strickland v Washington, 466 US at 687). The first prong of the Strickland test requires a showing that counsel's representation fell below an objective standard of reasonableness (id.). The second prong, also known as the prejudice prong, "focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process" (Hill v Lockhart, 474 US 52, 59 [1985]). In order to satisfy the second prong, a "defendant must 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" (id.). The core of the inquiry under the New York State standard is whether a defendant received "meaningful representation" (People v Benevento, 91 NY2d at 712).

Defendant stated in his affidavit that he had specifically asked his attorney about the immigration consequences of pleading guilty to criminal possession of a controlled substance in the seventh degree, and his attorney had affirmatively told him that there would not be any. As relevant here, federal law provides that any alien who is convicted of violating a state law "relating to a controlled substance . . . other than a single offense involving possession for one's own use of 30 grams or less of marijuana, is deportable" (8 USC § 1227 [a] [2] [B] [i]). Consequently, defendant met the first prong of the Strickland test (see People v Picca, __ AD3d __, 2012 NY Slip Op 04368 [2012]). Furthermore, defendant alleged that he would not have pleaded guilty had he known that it would make him eligible for deportation, meeting the second prong of the Strickland test (see People v Reynoso, 88 AD3d 1162, 1163-1164 [2011]; People v Marshall, 66 AD3d 1115, 1116 [2009]). Thus, we need not consider whether defendant demonstrated that he was deprived of meaningful representation under New York State law. However, since the allegations in the motion papers were neither conceded by the People to be true nor "conclusively substantiated by unquestionable documentary proof" (CPL 440.30 [3] [c]), in order for the Criminal Court to make the required "findings of fact essential to the determination" of the motion (CPL 440.30 [5]), a hearing is necessary.

As noted in People v Glasgow (95 AD3d 1367 [2012]), the New York State Court of Appeals has held, in People v McDonald (1 NY3d 109 [2003]), that demonstrating that counsel had affirmatively provided misadvice regarding the deportation consequences of a guilty plea was sufficient to demonstrate the first prong of an ineffective assistance of counsel claim under federal law and that "this type of affirmative misrepresentation falls below an objective standard of reasonableness" (id. at 115). Thus, we need not determine whether the subsequently decided case of Padilla v Kentucky (559 US ___, 130 S Ct 1473 [2010]), in which the Supreme Court of the United States held that an attorney must, at the very least, inform a defendant that [*3]immigration consequences may result from his guilty plea (id. at 1481 n 8, 1483), should be applied retroactively.

Accordingly, the order is reversed and the matter is remitted to the Criminal Court for a determination de novo, following a hearing, of defendant's motion to vacate the judgment of conviction.

Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: September 13, 2012