A defendant received ineffective assistance of counsel when his lawyer told him that he “could be” deported—not that he definitely would be deported—as a result of his guilty plea for attempted robbery, a divided state appeals court has ruled.
Moussa Doumbia, a “noncitizen” defendant and Ivory Coast native, will have the opportunity to vacate his plea upon showing that there’s a “reasonable probability” he would not have pleaded guilty had he known of the deportation consequences, the Appellate Division, First Department, ruled in a 3-1 decision.
“Lawyers have an affirmative duty to adequately inform their clients about the serious effects of criminal convictions … with as much specificity, as possible,” the majority wrote in an unsigned opinion. The majority added, “It is … ineffective assistance to advise a noncitizen of a mere risk or possibility that he ‘could be deported.’”
Doumbia pleaded guilty in 2013 to second-degree attempted robbery before Manhattan Supreme Court Justice Renee White. Second-degree attempted robbery is an aggravated felony, meaning it results in mandatory deportation under federal law, the majority said. Doumbia was sentenced to two years in prison, but the sentence was held in abeyance while he claimed ineffective assistance of counsel under the Sixth Amendment.
Justices Dianne Renwick, Sallie Manzanet-Daniels and Barbara Kapnick wrote that defense attorneys are required “to implement the Sixth Amendment protection to which noncitizen defendants are entitled.” Quoting Padilla v. Kentucky, 559 US 356 (2010), they said if “the deportation consequence is truly clear … the duty to give correct advice is equally clear.”
They also disputed dissenting Justice Peter Tom’s points, writing that the “existing, unexpanded [lower court] record [was] sufficient” for an ineffective assistance finding, and taking Tom to task for excusing the unnamed defense counsel’s “nebulous advice” because, quoting Tom, “‘it is unclear from the record whether counsel’s strategy included pursuing youthful offender status to avoid removal.’”
“What the dissent proposes is that since there may be avenues available for avoiding even certain deportations, defense counsel only has a duty to inform a noncitizen that there is a risk,” the majority wrote in State of New York v. Doumbia, 3845/12. “Such a standard would not only seriously undermine the Sixth Amendment protection to which noncitizen defendants are entitled, but would also conflict with the concept of a truly informed plea agreement.”
But Tom made several counterpoints in a lengthy dissent. “It was incumbent on defendant to substantiate his claims about his attorney’s advice and strategy by filing a CPL 440.10 motion,” which would have allowed Doumbia to present facts outside of the lower court record, he argued.
“It is unclear from the record whether counsel’s strategy included pursuing youthful offender status to avoid removal,” he wrote. “Nor does the record reveal whether counsel, in conjunction with the immigration attorney, was considering pursuing or awaiting possible relief under the Convention Against Torture (CAT), given defendant’s family background of persecution in his native Ivory Coast.”
He added, “Defense counsel’s advice that defendant ‘could be deported’ does not appear to be incorrect.”
“The majority sets forth an impossible standard for counsel given the circumstances in this case,” Tom continued. “Contrary to the majority’s claim, requiring a CPL 440.10 motion to determine what specific advice counsel gave to defendant or counsel’s strategy would not undermine the Sixth Amendment protections to which defendant is entitled.”
Mark Zeno, an assistant attorney in charge for the Center for Appellate Litigation, who represented Doumbia, said on Wednesday, in response to Tom’s dissent, that “when you’re pleading guilty to an aggravated felony, remedies like asylum and Convention Against Torture are extremely remote possibilities.”
He also noted that more evidence, beyond the trial record, will come out during the hearing on whether there’s a “reasonable probability” that Doumbia would not have pleaded guilty had he known of the deportation consequences. That additional hearing helps undercut Tom’s CPL 440.10 motion point, he said.
Philip Morrow, an assistant district attorney under Manhattan District Attorney Cyrus Vance Jr., represented New York State. A spokeswoman for District Attorney Vance said the office declines to comment.