A defendant was not advised of the immigration consequences of his guilty plea to sexual abuse, but nevertheless his conviction should stand, an unusually fractured Appellate Division, First Department, panel ruled last week.
A 3-2 majority rejected Felix Hernandez's claim he had received ineffective assistance of counsel. Four of the five judges faulted his lawyer's performance, but the majority concluded that the defendant had not shown he had been prejudiced by it -- that he would not have pleaded guilty if he had received the correct advice.
New York trial courts have been grappling with attorneys' obligation to criminal clients facing deportation since the U.S. Supreme Court ruled in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), that, in connection with a plea, effective assistance requires a defense counsel to advise a defendant of the immigration consequences of his plea.
However, there has been little state appellate discussion of the issue, and it has not been decided by the New York Court of Appeals.
Hernandez spawned two opinions expressing doubts about the defendant's credibility, concurring in the judgment and affirming his plea. But there also was a lengthy dissent.
"The record amply supports the hearing court's conclusion that defendant decided to accept the plea, not because he was defectively advised on the immigration issue, but rather because pleading guilty was the course most advantageous to him," Justice John Sweeny Jr., joined by Justice David Saxe, wrote for one concurrence in People v. Hernandez, 7531-7532.
Justice Sallie Manzanet-Daniels concurred separately.
But Justice Helen Freedman wrote that the plea should have been vacated, with the case sent back for trial because Hernandez had demonstrated a "reasonable probability" that the ineffective assistance affected his decision to plead guilty.
The defendant "adduced evidence at the hearing that he was the sole provider for and primary caretaker of his six children. He further maintained that, out of concern for his children, he would not have pleaded guilty had he known that he would be automatically deported," Freedman wrote, joined by Justice Karla Moskowitz.
The panel heard oral arguments on April 11.