THE MOTION COURT APPLIED THE WRONG CRITERIA WHEN RULING ON WHETHER THE DEFENDANT WAS PREJUDICED BY THE ALLEGED INEFFECTIVE ASSISTANCE OF COUNSEL; DEFENDANT’S MOTION TO VACATE HIS CONVICTION BASED UPON DEFENSE COUNSEL’S ALLEGED FAILURE TO INFORM HIM OF THE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING; ASSESSING DEFENDANT’S CHANCES AT TRIAL IS NOT THE PROPER ANALYSIS (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Renwick, over a dissent, determined the motion court applied the wrong criteria for assessing whether the defendant was prejudiced by the alleged ineffective assistance of counsel. Defendant moved to vacate his conviction, alleging defense counsel did not inform him of the deportation consequences of his guilty plea. The defendant’s chance of success at trial is irrelevant to whether defendant was entitled to a hearing. The First Department succinctly summarized the issues and the ruling as follows:

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 … . 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 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. People v Lantigua, 2020 NY Slip Op 02557, First Dept 4-30-20