ALBANY – A Russian citizen who pleaded guilty to child sex offenses will have an opportunity to withdraw his plea on ineffective assistance grounds if he can show that his attorney failed to advise him of the immigration consequences, an upstate appeals panel has held.

The Appellate Division, Third Department, holding in People v. Oouch, 104769, builds on a growing body of law that has emerged since the U.S. Supreme Court in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), held that defense counsel must advise clients of the deportation risks of pleading guilty.

In its July 12 decision, the Third Department applied Padilla retroactively, following the lead of the Appellate Term, Second Department, in People v. Nunez, 30 Misc 3d 55 (2010).

“If defense counsel was aware of defendant’s immigration status and failed to inform him that he was pleading guilty to a deportable offense, then counsel’s representation would fall below an objective standard of reasonableness and thereby satisfy [the test for] determining whether defendant was deprived of his constitutional right to the effective assistance of counsel,” Justice Robert Rose (See Profile) wrote for the unanimous Third Department panel.

Justices Thomas Mercure (See Profile), E. Michael Kavanagh (See Profile), William McCarthy (See Profile) and John Egan Jr. (See Profile) were also on the bench.

Oouch, who emigrated from Russia in 1993, pleaded guilty in 2008 to use of a child in a sexual performance and possession of a sexual performance by a child.

When federal authorities advised Oouch that he would be deported, he filed a CPL 440.10 motion to vacate the conviction for ineffective assistance of counsel. Then-Albany County Judge Thomas Breslin denied the motion without a hearing last December, finding no reasonable probability that the defendant’s claims were true.

The Third Department ordered a new hearing before a different judge because Breslin, now a Supreme Court justice, had already determined the defendant’s claims were meritless.

Oouch’s trial counsel, F. Stanton Ackerman of Albany, submitted an affidavit denying that he had failed to discuss the immigration consequences with his client.

But with no “documentary evidence establishing that he discussed immigration issues with defendant prior to the guilty plea…there is a clear question of credibility and defendant’s claim is not conclusively resolved by unquestionable documentary evidence,” Rose said.

The panel noted that Oouch offered documentary proof that Ackerman knew he was a noncitizen and he submitted an affidavit saying Ackerman never advised him of the possibility of deportation. Another affidavit from the defendant’s stepfather—the primary contact with Ackerman— asserts that the issue never came up during plea discussions.

Ackerman was unavailable for comment July 13.

Cynthia Feathers, an attorney in Glens Falls who represented Oouch on the appeal, said the ruling is a “nice addition to the growing body of Padilla v. Kentucky law, which has really changed the landscape in establishing that it is ineffective assistance if you do not tell your client when there are clear immigration consequences to the plea deal on the table.”

Feathers said the key issues at the hearing ordered by the Third Department will be whether Ackerman told Oouch of the immigration consequences and, if he had, whether Oouch would have agreed to the deal or gone to trial. She said Lois Shapiro Canter of Saratoga Springs will represent the defendant at the hearing.

Since Padilla was decided two years ago, courts have grappled with its application in various circumstances, as well as its retroactivity, with the circuit courts splitting on whether the holding is applicable retroactively. That issue is now before the U.S. Supreme Court in a case slated for argument next term, Chaidez v. United States, 11-820.

In Oouch, the Third Department simply applied Padilla retroactively without discussion.

But the Appellate Term in the Nunez matter analyzed the issue and concluded that Padilla did not break new ground and is therefore not new law.

“In Padilla, the Supreme Court merely applied the well-established [Strickland v. Washington, 466 U.S. 668, 1984] standard to the facts therein in determining that the defendant had received ineffective assistance of counsel because his attorney had failed to advise him of the deportation consequences before he had entered his guilty plea, and had told him not to worry about being deported since he had lived in this country for a long time,” the Appellate Term said in a memorandum. “This, we find, is the application of a well-established old rule.”

Alfred O’Connor of the New York State Defenders Association said that even if the U.S. Supreme Court holds that Padilla is not retroactive, the New York courts would not be bound by that determination, per the Supreme Court’s 2008 holding in Danforth v. Minnesota, 128 S.Ct. 1029 (2008). In Danforth, the Supreme Court said state courts can apply new federal constitutional rules retroactively if they choose to do so.

“The significance of [Oouch] is that the court is applying Padilla retroactively, and that is certainly a development,” O’Connor said. “But even if the Supreme Court rules in Chaidez that it is a new rule, it doesn’t foreclose the New York courts from applying it retroactively under state law. The Supreme Court will not be the last word on whether Padilla will be available in New York under state retroactivity principles.”

Feathers said courts also have differed on the standard a defendant must meet under Padilla to demonstrate prejudice.

Here, the Third Department not only applied Padilla retroactively, but said that to prevail the defendant does not have to establish a likelihood that he would have been acquitted if he had gone to trial, only that if he had known of the deportation risk he would not have taken the plea deal.

“In light of defendant’s showing that he would not have pleaded guilty if he had been informed that it would result in his deportation, County Court should have held a hearing on the CPL 440.10 motion,” Rose wrote in the decision.

The Albany County District Attorney’s Office, which prosecuted Oouch, declined to comment. Assistant District Attorney Kenneth Weaver argued the appeal.