Defendant Who Was Not Informed His Guilty Plea Would Result in Deportation Was Unable to Demonstrate He Was Prejudiced by the Omission

The Court of Appeals, over a dissent, affirmed defendant’s conviction, in spite of his counsel’s failure to inform him his guilty plea would result in deportation. The court determined that, under the specific facts of the case, there was no “reasonable probability” defendant would not have entered a guilty plea had he been informed of the mandatory deportation:

Under the State and Federal Constitutions, a defendant has the right to the effective assistance of counsel (see US Const, 6th Amend; NY Const, art I, § 6…).  Under the Federal Constitution, defense counsel is ineffective when his or her performance “f[a]ll[s] below an objective standard of reasonableness” under “prevailing professional norms” (Strickland v Washington, 466 US 668, 687-688 [1984]).  Even if counsel’s performance is deficient, however, the defendant’s conviction will not be reversed unless “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different” (id. at 694-695).  In the plea context, the defendant “must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial” … .  Whether the defendant can show such a “reasonable probability” will often turn, as it does here, on credibility determinations which, if they have support in the record, we cannot review… . * * *

…[W]e conclude that there is support for the lower courts’ determination that defendant failed to show a reasonable probability that, if counsel had informed him that he was certain to be deported as a result of his guilty plea, he would not have pleaded guilty and would have gone to trial… .  People v Hernandez, 211, CtApp 11-19-13