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 this 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 Court of Appeals.

Heranandez 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. (See Profile), joined by Justice David Saxe (See Profile), wrote for one concurrence in People v. Hernandez, 7531-7532.

Justice Sallie Manzanet-Daniels (See Profile) concurred separately.

But Justice Helen Freedman (See Profile) 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 (See Profile).

The panel heard oral arguments on April 11.

Hernandez, born in the Dominican Republic, obtained permanent residency in 1997 and had six children from two marriages.

He was indicted in March 2007 for attempted rape. Prior to that indictment, he had pleaded guilty to second-degree assault for a separate incident in 2001 and received probation.

After a lunch break at a suppression hearing, Hernandez’s attorney, Joseph Schioppi of Kew Gardens, told Manhattan Acting Supreme Court Justice Edward McLaughlin (See Profile) that Hernandez wanted to plead guilty to first-degree sexual abuse in full satisfaction of the attempted rape indictment.

McLaughlin asked Hernandez if Schioppi had explained the defendant’s legal rights and options and Hernandez confirmed that the attorney had done so. But as the dissent pointed out, McLaughlin did not directly ask Hernandez if he had been advised of the immigration consequences of his plea.

McLaughlin also said, “I have no idea what any federal immigration situation would be as a result, if any, of this conviction, but I am suppose[d] to tell you that as well.”

Hernandez was sentenced to five years in prison. A federal immigration court ordered his deportation after a hearing at which he said he was innocent and did not want to leave the country because he did not want to be separated from his children.

In his state motion to set aside the conviction, Hernandez said his constitutional right to counsel had been violated by Schioppi’s failure to flag the plea’s immigration consequences. He insisted he would have opted for trial had he known a guilty plea would lead to deportation.

Schioppi said at a hearing on Hernandez’s motion that he did not remember if he had advised Hernandez of the deportation possibility. However, he added that it was not his practice to discuss immigration consequences unless the issue came up in proceedings. Hernandez’s attorney on the post-conviction motion stipulated that Schioppi had previously told her his practice at the time was to tell non-citizens with green cards that guilty pleas for felonies “could be used for deportation purposes.”

At the hearing, Hernandez denied trying to rape his alleged victim. He admitted physical contact with her but denied touching her due to sexual desire.

Hernandez said he was angry with the woman for previously bringing a man to his apartment and leaving the man alone with his wife. After telling her to leave, she “talked back,” and he grabbed her “between her pant and her blouse” and moved her to the apartment door and she left, he said.

Hernandez said that when pleading guilty he misunderstood certain terms like “sexual contact,” which he said he thought was any physical contact with someone of the opposite sex without their consent. Hernandez also noted immigration authorities had not taken action against him after his previous plea for assault.

McLaughlin acknowledged Hernandez was insufficiently warned of the possibility of deportation and said he did not think his own warning “corrected the problem that Mr. Schioppi’s vague advice created,” as Freedman wrote in her dissent.

But Hernandez was not prejudiced as a result, said McLaughlin, because the guilty plea was premised on Hernandez’s belief that if going to trial conviction “was a certainty” with deportation and a longer sentence—as opposed to a shorter sentence and deportation through a guilty plea.

As for Hernandez’s definition of “sexual contact,” McLaughlin called it “positively Clintonesque” by the “redefining for self-interest of commonly understood human and sexual and legal principles.”

‘Unwarranted Speculation’

Freedman in her dissent said McLaughlin’s dismissal was based on “unwarranted speculation” about the timing of the plea, Hernandez’s certainty of conviction and his purported anticipation of deportation upon conviction.

Rebutting the alleged certainty of conviction, Freedman said the evidence against Hernandez was “not overwhelming,” adding, for example, there was “no corroborating physical evidence.”

Freedman said “it was entirely plausible” for Hernandez to mistakenly think he was immune from deportation, given no action had been taken against him for his assault conviction.

She said Hernandez had a limited education and was not fluent in English so he “could not be expected to be familiar with immigration law or to have sought advice from an immigration attorney.”

But Sweeny said Freedman accepted Hernandez’s testimony on its face while the lower court had rejected his testimony as “incredible.” His alleged misunderstanding of “sexual contact” was one example of Hernandez’s “lack of candor,” said Sweeny.

In her concurrence, Manzanet-Daniels said Hernandez’s purported misunderstanding of sexual contact “defies common sense and the record evidence.”

The claim that Hernandez believed mere physical contact equaled punishable sexual contact was “palpably ridiculous,” she said, adding, “If this were the case, just shaking a woman’s hand, without her consent, would consign the offender to a state prison sentence.”

Manzanet-Daniels rebutted the dissent’s conclusion that Hernandez had been motivated by anger, not sexual desire.

“One motivated solely by anger generally does not ‘grab[] [someone] between her pants and her blouse’ in order to eject her from the premises,” she said.

In any case, she added that Hernandez was not prejudiced by the outcome because he was already eligible for deportation after his assault conviction.

Manhattan Assistant District Attorney Hope Korenstein represented the prosecution. The office declined to comment.

Hernandez was represented in his motion to set aside the conviction and appeal by Bonnie Brennan of the Legal Aid Society.

“We’re disappointed with the result and strongly agree with the reasoning and result of the dissent,” said Lawrence Hausman, a supervising attorney in Legal Aid’s criminal appeals bureau.

Hausman said the office would seek leave to appeal from the Court of Appeals, adding that the case presented “important legal issues about ascertaining whether an individual is prejudiced by a lawyer’s ineffectiveness in this context.”

Hernandez, now 42, was turned over to U.S. Immigration and Customs Enforcement in March. Hausman said a favorable ruling in the Court of Appeals could avert his deportation.

Schioppi did not respond to a request for comment.