People v Lantigua (2020 NY Slip Op 02557) People v Lantigua 2020 NY Slip Op 02557 Decided on April 30, 2020 Appellate Division, First Department Renwick, J. 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 on April 30, 2020 SUPREME COURT, APPELLATE DIVISION First Judicial Department Dianne T. Renwick, J.P. Barbara R. Kapnick Angela M. Mazzarelli Troy K. Webber, JJ. 10764 7466/98 [*1]The People of the State of New York, Respondent, vGustavo Lantigua, Defendant-Appellant. Defendant appeals from an order of the Supreme Court, New York County (Gilbert C. Hong, J.), entered on or about March 27, 2017, which denied defendant's CPL 440.10 motion to vacate a judgment of conviction rendered November 5, 1998. The Law Office of Andrew L. Friedman, New York (Andrew L. Friedman of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Frank Glaser of counsel), for respondent. RENWICK, J.P. This appeal involves a summary denial, without a hearing, of a postjudgment, CPL 440.10 motion claiming ineffective assistance of counsel regarding a guilty plea that subjected defendant to mandatory deportation. We find that the trial court improperly denied the motion without a hearing pursuant to CPL 440.30(4)(d) (i) & (ii). This section permits a court to reach the merits of a postjudgment motion without a hearing to dismiss frivolous claims (see People v MacKenzie, 224 AD2d 173 [1st Dept 1996]). In the case at bar, however, as the dissent concedes, there is independent support for defendant's assertion that his plea was induced by erroneous advice given by his trial counsel, namely that his felony guilty plea would not subject defendant to mandatory deportation. Nevertheless, the dissent argues that summary denial of the CPL 440.10 motion is still proper, because defendant's allegations did not raise a reasonable possibility that he was prejudiced by the misadvice. We disagree. Like the court below, the dissent applies the wrong prejudice standard, by focusing exclusively on defendant's alleged lack [*2]of a viable defense and the likelihood he would have been convicted after trial, and disregards the particular circumstances of defendant's desire to remain in the United States. The dissent's reasoning is contradicted by the recent United States Supreme Court holding in Lee v United States (582 US __, 137 S Ct 1958, 1966 [2017]), which rejects any per se rule that prevents a defendant from establishing prejudice by an attorney's erroneous advice simply because the defendant may not have a strong defense. Instead, as Lee v United States mandates, even if the chance of success at trial is low, the prejudice inquiry should focus on the defendant's decision-making and whet her it was reasonable for one in defendant's position, facing mandatory deportation, to choose to take a shot a trial. Factual and Procedural Background Defendant was arrested on August 4, 1998, and was charged with one count of criminal possession of a controlled substance in the third degree, a ...
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