People v Baez-Arias (2022 NY Slip Op 01852) People v Baez-Arias 2022 NY Slip Op 01852 Decided on March 17, 2022 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered:March 17, 2022 112753 [*1]The People of the State of New York, Respondent, vYadiel Baez-Arias, Appellant. Calendar Date:February 9, 2022 Before:Lynch, J.P., Clark, Aarons, Colangelo and Fisher, JJ. Law Offices of Danielle Neroni, Albany (Danielle Neroni Reilly of counsel), for appellant. Lorraine C. Diamond, District Attorney, Fonda (Christina Pearson of counsel), for respondent. Colangelo, J. Appeal, by permission, from an order of the County Court of Montgomery County (Catena, J.), entered March 25, 2021, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment convicting him of the crime of grand larceny in the fourth degree, without a hearing. In June 2018, defendant, a noncitizen of the United States, pleaded guilty to grand larceny in the fourth degree and waived his right to appeal. In accordance with the terms of the plea agreement, County Court sentenced defendant to 1⅓ to 4 years in prison. In January 2021, defendant moved pursuant to CPL 440.10 to vacate the judgment of conviction on the grounds that his plea was involuntary and he was denied the effective assistance of counsel because trial counsel failed to advise him of the deportation consequences of his plea. County Court denied the motion without a hearing, and this Court granted defendant permission to appeal. We affirm. "The Court of Appeals has recognized that, 'because deportation is so closely related to the criminal process and carries such high stakes for noncitizen defendants, a defense attorney deprives a noncitizen defendant of his or her Sixth Amendment right to the effective assistance of counsel by failing to advise, or by misadvising, the defendant about the immigration consequences of a guilty plea'" (People v Lawrence, 148 AD3d 1472, 1473 [2017], quoting People v Peque, 22 NY3d 168, 190 [2013]; see Padilla v Kentucky, 559 US 356, 366-374 [2010]). As a result of such a failure, "counsel's representation would fall below an objective standard of reasonableness and thereby satisfy the first prong of the test set forth in Padilla for determining whether a defendant was deprived of his or her constitutional right to the effective assistance of counsel" (People v Marte-Feliz, 192 AD3d 1397, 1398 [2021] [internal quotation marks, brackets and citations omitted]; see People v Oouch, 97 AD3d 904, 905 [2012]). The second prong of the Padilla test "requires a determination of whether there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different" (People v Oouch, 97 AD3d at 905 [internal quotation marks and citation omitted]; see People v Rajpaul, 100 AD3d 1183, 1184 [2012]). "On a motion to vacate a judgment of conviction under CPL 440.10, a hearing is only required if the submissions …
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