LITIGATING 440 MOTIONS ANDOTHER POST-CONVICTION

RELIEF FOR NON-CITIZENS

September 22, 2017

Lisa NapoliSupervising AttorneyAppellate Advocates111 John Street, 9th FloorNew York, New York 10038212/693-0085 ext. 202lnapoli@appad.org

TABLE OF CONTENTS

I. The Basics of Motion Practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

A. What a 440 Motion Consists Of. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

B. The Initial Factual Investigation: Determining What Claims areAvailable and What Relief is Required. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

1. The Primary Documents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

2. The Client.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

3. Former Defense Counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

4. Determine the Risk, If Any. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

5. Negotiation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

6. The Hearing and/or Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

a. The Client’s Presence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

7. Orders, Re-pleas, and New Sentencings. . . . . . . . . . . . . . . . . . . . . . . . . . . 6

8. Appealing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

III. The Merits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

A. The Ineffective Assistance of Counsel (“IAC”) Claims. . . . . . . . . . . . . . . . . . . . . 7

1. Deficient Performance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

a. Failure to Advise (Convictions that were not final on or afterMarch 31, 2010).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

b. Failure to Advise (Convictions that were final beforeMarch 31, 2010).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

c. Failure to Negotiate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

d. Misadvice About Immigration Consequences. . . . . . . . . . . . . . . . 12

e. Failure to Investigate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

i

f. Failure to Prepare. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

g. Failure to Convey a Plea Offer.. . . . . . . . . . . . . . . . . . . . . . . . . . . 14

h. Failure to Advise or to Accurately Advise Regarding the Desirability of an Offer, Including Accurate Advice About a Plea’s Material Aspects or Consequences. . . . . . . . . . . . 15

2. Prejudice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

B. The Due Process Claims. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

1. Involuntary and Unknowing Plea.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

2. The Court’s Failure to Advise the Defendant of the Plea’sImmigration Consequences. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

C. Other Claims. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

1. Cruel and Unusual Punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

2. Error Coram Nobis.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

ii

LITIGATING 440 MOTIONS AND OTHER POST-CONVICTION RELIEF FOR NON-CITIZENS

The purpose of post-conviction relief (“PCR”) is to undo that conviction and replace it witha disposition that is immigration-safe (there are no immigration consequences) or immigration-safer(eligibility for discretionary relief is maintained and/or a path to lawful status is opened). A strongPCR motion will bring alive the client’s personal story, including the circumstances that led her/himto criminal conduct, and why and how those circumstances have been remedied. While differentjurisdictions place different emphasis on the movant’s equities, equities always matter.

I. The Basics of Motion Practice

The overall goal of PCR litigation on behalf of a non-citizen is to remove or mitigate aconviction’s negative impact on the client’s immigration status. Most commonly, a PCR motionseeks vacatur so that the client can plead to a less damaging offense or get a less damaging sentence;vacatur can be obtained by negotiating with the People and getting them to agree to the desired plea,or ordered by a judge based on a meritorious legal claim raised in the motion. These motionstypically involve ineffective assistance of counsel claims: you must show that counsel’s performancewas deficient and that, had counsel acted properly, the outcome of the proceeding would have beendifferent. All motions should have an affidavit from the client stating that s/he would have soughtthat different outcome, in addition to whatever personal details you want to put before the court. Anaffirmation from former defense counsel is not required, but ideally you should have some sort ofcorroboration regarding counsel’s performance – for example, a family member may have beenpresent, former defense counsel may have a documented bad history of deficient performance, orformer counsel’s trial file may contain a helpful notation.

A. What a 440 Motion Consists Of

A 440 motion consists of the following:

• notice of motion;• an affirmation by you, as counsel on the motion, in which you tie together the facts

with the legal claims and tell the “story” as we want the court and the People tounderstand it;

• an affidavit from the client stating her/his sympathetic life story and whatever factsare necessary to establish the legal claim(s) and entitlement to relief;

• affidavits from any other party necessary to establish the legal claim(s) and equities;• a memorandum of law stating the legal claim(s) and the relief requested; and• exhibits: letters of support from friends, family and community, color copies of

family photos, and any documents needed to establish the legal claim(s) and equities.

-1-

A word about the notice of motion: the relevant statutory provision is Rule 2214 of the CivilPractice Law and Rules. Generally, a motion is returnable 15 days from the date of service and filing(unless service is by mail, then you must add another 5 days) – that is to encompass the 7-day periodfor a reply.

The typical request for relief is a decision on the papers (see C.P.L. § 440.30[3]-[4]) or, inthe alternative, that a hearing be held pursuant to C.P.L. § 440.30(5). For guidance on the evidencerequired to decide a motion on the merits, please refer to C.P.L. § 440.30, which governs 440procedure. See also People v. Wright, 27 N.Y.3d 516 (2016); People v. Roberts, 143 A.D.3d 843,845-46 (2d Dep’t 2016); People v. Martial, 125 A.D.3d 689, 690 (2d Dep’t 2015).

B. The Initial Factual Investigation: Determining What Claims are Available and What Reliefis Required

PCR litigation for non-citizens is outcome-driven: start with what result(s) you need or wantto get and then figure out what claim(s) and relief will get you there. Thus, the first step in PCRlitigation is to find out from the Regional Immigration Assistance Center (“RIAC”) and/or theclient’s immigration counsel, if any, what the ideal disposition(s) and the bottom-line disposition(s)are and what the time line is. Bear in mind that the desired immigration-safe(r) disposition couldinclude a change in the count of conviction, a reduction of the sentence, both, or something elseentirely. Once you have determined this, you can figure out the litigation strategy and what claim(s)you can possibly raise in order to reach the immigration objective.

1. The Primary Documents

The basic record consists of the court file, the plea and sentencing minutes, the rap sheet, andformer counsel’s trial file:

• The court file and relevant minutes (you may determine you need more than the pleaand sentencing) are used to determine what happened officially on the record.

• The rap sheet is needed to determine the client’s criminal history because this willinform the District Attorney’s willingness to negotiate and what final result is neededfor the client to protect her/his immigration status. Always ask immigration counselif s/he has the FBI rap sheet because this version is more complete than what criminaldefenders usually get.

• The former attorney’s trial file may reveal what advice the attorney provided and/orwhat the attorney knew (or did not know) about the client’s immigration status.

Those are just the basic documents – you may or not be able to get some or all of them. Every case is different: you may also want to request school records, military records, medicalrecords, mental health records, and/or prison records, depending on the case and the client.

-2-

You may want to make a FOIL request for any DD-5s, memo book entries, police complaints,etc that were generated in relation to the case, and possibly a request for the ADA’s trial file. AFOIL request will not generally be granted if there is pending litigation, such as a direct appeal.

In addition, you should consider getting evidence of rehabilitation. The two primary meansfor showing rehabilitation are certificates of relief from disabilities (“CRDs”) and certificates ofgood conduct (“CGCs”). The value of another agency’s determination that a client has beenrehabilitated is that an objective entity has investigated the client and give her/him their seal ofapproval. If a client has had any other kind of contact that has resulted in an analogousdetermination, look into getting that as well.

2. The Client

Communicate with the client to find out the following information (if you do not have italready):

C Ask about any prior arrests/charges/convictions/outstanding warrants, including out-of-state matters, in order to catch any criminal matters that may have escaped ourattention.

C Find out the underlying facts and allegations for all other arrests and convictions.C Ask if there are any possible recordings of calls made from custody that could

contradict what the client is saying.C Ascertain what exactly counsel said about immigration consequences of the plea at

issue and the right to appeal, including whether counsel provided the client withanything in writing about the right to appeal. Find out whether there were anywitnesses to counsel’s advice, like a family member.

C If client did not appeal, ask why s/he decided not to.C Ask about equities: how old was the client when s/he came here; what are her/his ties

to the country of origin; which family members are here and which remain in thecountry origin; does the client have any children or dependent family members, likean aging parent.

The client’s affidavit is key to establishing the attorney’s error, because it is unlikely you willhave an affirmation from former counsel. In People v. Roberts, 143 A.D.3d 843, 845 (2d Dep’t2016), the Second Department remitted the matter for a hearing when one had been denied, stating:

[A]lthough the defendant's claim of misadvice was based solely onhis own sworn allegations, the defendant explained his failure tosubmit an affirmation from his former attorney and it is unlikely, asthe People suggest, that there were witnesses to counsel's provisionof confidential advice or any documents created reflecting the contentof that advice (see People v Pinto, 133 AD3d at 790). In any event,

-3-

it cannot be said that there was no reasonable possibility that thedefendant's allegations, which included details as to specific advicegiven to him by his attorney, were true (see CPL 440.30 [5]).

3. Former Defense Counsel

Document all efforts to contact former defense counsel (including dates and times you leftmessages and if s/he answered or left a message in response) and what you discussed. If counselrefuses to speak to you about the case, note that so you can include it in your affirmation. If counselwill speak to you, try and get her/him be specific: what did counsel tell the client about theimmigration consequences of the plea? Did counsel tailor her/his advice to the client’s situation orsimply state that the conviction would have consequences? How did counsel obtain this advice --was it in-house counsel, for example – and is there any documentation of this advice? Did counseltry to negotiate any other disposition and if so, what? If counsel does not recall, ask if it was her/hispractice to give immigration advice and, again, what specifically s/he would say. The goal is to havecounsel do an affirmation, but some attorneys may refuse. It is not necessary to have an affirmationfrom former defense counsel. See, e.g., People v. Roberts, 143 A.D.3d 843, 845 (2d Dep’t 2016);People v. Radcliffe, 298 A.D.2d 533, 534-35 (2d Dep’t 2002). Document all efforts to contactcounsel and if counsel refuses to do an affirmation, you can put that refusal and anything else s/hesaid in your own affirmation.

Since it can be hard to get defense counsel to cooperate, other avenues for investigation mayneed to be utilized. For example, you can research whether the attorney has ever been disciplinedand/or been the subject of a 440 motion based on the same (or similar) error you are asserting or anyother misconduct.

4. Determine the Risk, If Any

In order to assess the risk of plea withdrawal, figure out what charges are revived once theplea is withdrawn and determine the universe of alternate pleas, specifically identifying whatalternatives exist that would minimize or obliterate any immigration consequence. The client mustbe advised of the risk s/he faces, if any. If your client is not in removal proceedings or is otherwiseunder ICE’s radar, you must consider the risk of filing a 440 motion (or taking any other action) interms of it drawing attention to your client. This concern must be discussed with the RIAC andimmigration counsel.

If your client is not in proceedings or is otherwise under ICE’s radar, you must consider therisk of filing a 440 motion (or taking any other action) in terms of it drawing attention to your client. This applies only to clients who are not in proceedings or are otherwise off the grid.

-4-

5. Negotiation

At this point, you should have an idea of what disposition options would avoid or mitigatethe client’s immigration problem. If you have not done so already, determine the ideal disposition(s)and the bottom-line disposition(s). Now, you know what to aim for and what you absolutely needto get for the client; these are your parameters for negotiation with the People. As you prepare tonegotiate with the People, determine the key equities you want to spotlight, the client’s prior andsubsequent criminal history, and the effect of the desired disposition on the client’s predicate status.

If a client needs a different count of conviction, the universe of alternative pleas begins withthe offense charged in the accusatory instrument and the lesser-included offenses and otherdispositions allowed by the plead-down rules and case law on lesser-included offenses. See C.P.L.§§ 220.10 & 220.20.

Basically, each case will be different – how you approach negotiation will be impacted by,among other things, the “ask,” the time line, your client’s need to avoid detection, and so on. Depending on the case, you may want to enlist a local elected official and/or local communityleaders. You can initiate negotiation by, for example, calling the District Attorney’s Office and thensending a negotiation letter, submitting a proposed motion to the District Attorney’s Office, or filingthe motion with the court.

6. The Hearing and/or Argument

At a hearing on a 440 motion, the movant has the burden of proving “every fact essential tosupport the motion” by a preponderance of the evidence. C.P.L. § 440.30 (6). Once a hearing isordered, you are entitled to discovery from the People under C.P.L. § 440.30(1)(b). Just keep inmind that the People may then ask you for discovery.

a. The Client’s Presence

A 440 movant can waive the right to be present at a hearing on her/his 440 motion and is not required to be there. See C.P.L. § 440.30(5)(movant must execute written waiver of right to bepresent). There are two concerns regarding a client’s presence when it comes to 440 proceedings:the client may be vulnerable to ICE enforcement by coming to the courthouse for any proceeding orthe client may have been removed already and you need to facilitate her/his presence or testimony. Both situations will be informed by the changing political climate and resources; if you are facedwith either situation, you will have to creatively approach the problem and tailor your strategy to theparticular circumstances. But be aware that there are options and both issues can be dealt with.

If the concern is ICE enforcement and courthouses are still vulnerable locations (there is alot of advocacy around this issue and courthouses may become more secure), avoid having your

-5-

client come to court until s/he enters a new plea or is re-sentenced. For example, with client’swritten waiver of right to personally enter a plea and written authorization for counsel to do so, adefense attorney can enter a plea in Criminal Court on a client’s behalf. See C.P.L. § 340.20(2).

7. Orders, Re-pleas, and New Sentencings

The basic rule is that the order should be as neutral as possible and avoid any language thatimplies the motion was granted because of immigration hardship. Generally, it is sufficient to statethat the motion is being granted pursuant to C.P.L. § 440.10(1)(h) and leave it at that. Consult withthe RIAC or the client’s immigration lawyer, if s/he has one, regarding the language. Run the orderby the ADA and by the Court to make sure that everyone agrees.

How to control the plea allocution is case-by-case. Always consult with the RIAC and theimmigration lawyer, if there is one, about how to control the allocution.

As for new sentences, you want to pay attention to whether your client will be taken intocustody for re-calculation of the sentence or whether s/he runs the risk of being sent back upstate. Both can be avoided with pre-planning. You can contact DOCCS (email or call Diane Holford,DOCCS’s Office of Sentencing Review, at 518/457-4652 or Diane.Holford@doccs.ny.gov), inadvance to provide a letter stating that DOCCS does not to have the client in physical custody. SeeC.P.L. § 430.20(4).

8. Appealing

If the motion is denied, you must move the Appellate Division for leave to appeal within 30days of the decision and order being appealed from (the real rule is more lenient, but we want to erron the side of caution). The People can appeal as of right from the grant of a 440 motion.

If you had a hearing judge that you think was biased against your client, you can ask theAppellate Division to remand for a hearing before a new judge. See, e.g., People v. Brown, 142A.D.3d 622, 623 (2d Dep’t 2016) (remanding for hearing before different judge “since certainstatements made by the court at sentencing and certain determinations in the order on appeal mightgive rise to an appearance that the court was predisposed to rule against the defendant on thecredibility issues that are central to the subject motion”); People v. Jenkins, 84 A.D.3d 1403, 1408(2d Dep’t 2011)(remanding to Supreme Court for evidentiary “before a different judge “[s]ince theHearing Justice evinced a predisposition to reject or discredit the defendant’s evidence with respectto the issue of witness recantation”); see also Cullen v. United States, 194 F.3d 401, 408 (2d Cir.1999)(remanding for hearing before different judge, even though Second Circuit had “no doubt” thatoriginal judge could be fair, stating that “[t]here are occasions when a matter is appropriatelyremanded to a different district judge not only in recognition of the difficulty that a judge might have

-6-

putting aside his previously expressed views, but also to preserve the appearance of justice”; internalquotations omitted).

-7-

II. The Merits

What follows is a general overview of the claims that can be raised on behalf of a non-citizen. This list is not exhaustive. Basically, any claim that could result in vacatur should beconsidered, whether it is immigration-related or not – every case and every client are different andeach must be considered individually.

A. The Ineffective Assistance of Counsel (“IAC”) Claims

The collateral attacks typically raised on behalf of non-citizens are ineffectiveness claims. The two-prong federal test is (1) whether counsel’s performance was “reasonable[] under prevailingprofessional norms” and, if deficient, (2) whether there was “a reasonable probability that, but forcounsel’s unprofessional errors, the result of the proceeding would have been different.” Stricklandv. Washington, 466 U.S. 668, 687-88, 694 (1984). While the case law regarding the errorscomplained of are usually based on the Federal constitution, it is best practice to cite the New Yorkineffectiveness standard as well and to assert that both have been met. See, e.g., People v. Baldi, 54N.Y.2d 137, 147 (1981)(the “evidence, the law, and the circumstances of the particular case, viewedin totality and as of the time of the representation” show that the attorney did not provide“meaningful representation”).

A defendant is entitled to the effective assistance of counsel, including the plea-bargainingphase. See Lafler v. Cooper, 566 U.S. 156, 162-63 (2012); Missouri v. Frye, 566 U.S. 133, 140-47(2012); Hill v. Lockhart, 474 U.S. 52, 56-57 (1985). There is sweeping language regarding the importance of the right to counsel, which you can exploit:

The right to counsel is a fundamental right of criminal defendants; itassures the fairness, and thus the legitimacy, of our adversary process.E.g., Gideon v. Wainwright, 372 U.S. 335, 344, 83 S.Ct. 792, 796, 9L.Ed.2d 799 (1963). The essence of an ineffective-assistance claimis that counsel's unprofessional errors so upset the adversarial balancebetween defense and prosecution that the trial was rendered unfairand the verdict rendered suspect. See, e.g., Strickland v. Washington,466 U.S., at 686, 104 S.Ct., at 2064; United States v. Cronic, 466U.S. 648, 655-657, 104 S.Ct. 2039, 2044-2046, 80 L.Ed.2d 657(1984).

Kimmelman v. Morrison, 477 U.S. 365, 374–75 (1986). New York has traditionally affordedcriminal defendants a right to counsel that is greater than its Federal analog. See People v. Caban,5 N.Y.3d 143, 156 (2005) ("our state standard [for ineffective assistance of counsel] offers greaterprotection than the federal test"); People v. White, 56 N.Y.2d 110, 115 (1982)("this State has longbeen a protector of an accused's right to be heard through counsel," remaining "true to the spirit aswell as the letter of our State Constitution's provision"); People v. Settles, 46 N.Y.2d 154, 161

-8-

(1978) (“So valued is the right to counsel in this State, it has developed independent of its Federalcounterpart. Thus, we have extended the protections afforded by our State Constitution beyond thoseof the Federal well before certain Federal rights were recognized”; internal citations omitted).

One consideration is the retroactive application of the case law regarding the errorcommitted, which will be guided by the date that the conviction in question became “final.” Aconviction’s finality is not extended because the defendant could have continued to challenge theconviction. In People v. Varenga, 26 N.Y.3d 529, 535, 538-39 (2015), the Court of Appeals rejectedthe proposition that a conviction was not final during the one-year grace period provided by C.P.L.§ 460.30 for seeking permission to file a late notice of appeal when the defendant failed to availhimself of that application, expressly leaving open the finality question when a defendant does filesuch a motion.

1. Deficient Performance

When evaluating the reasonableness of counsel’s performance, the courts look at the“prevailing professional norms.” Wiggins v. Smith, 539 U.S. 510, 521 (2003); Strickland v.Washington, 466 U.S. 668, 688 (1984). A fruitful source for guidance on counsel’s duties are thevarious professional standards and advisories issued by professional associations. Consult with thestandards and advisories in effect at the time of the plea in question in order to establish counsel’sduty. Here are some examples:

American Bar Ass’n, “Criminal Justice Standards for the Defense Function” (4th ed.2015)

http://www.americanbar.org/groups/criminal_justice/standards/DefenseFunctionFourthEdition.html

National Legal Aid and Defender Ass’n, Performance Guidelines for Representationhttp://www.nlada.org/defender-standards/performance-guidelines

“The Immigration Consequences of Deferred Adjudication Programs in New YorkCity” (June 2007) http://www.nycbar.org/pdf/report/Immigration.pdf

Counsel’s ineffectiveness can manifest itself in many ways; it bears repeating that any claimthat could result in vacatur should be considered. Also, remember that any error will be consideredin the context of the reasonableness of counsel’s decision-making under the circumstances, includingwhether there was a reasonable strategic basis for the decision. Here are some examples of counselerror:

-9-

a. Failure to Advise (Convictions that were not final on or after March 31, 2010)

This is a straightforward Padilla claim: counsel had a duty to advise and failed to do so,depriving the client of a more desirable outcome. Padilla v. Kentucky, 559 U.S. 356 (2010).Counsel’s duty to advise is premised on counsel first correctly ascertaining the client’s immigrationstatus. Then, counsel needs to act on that knowledge by advising the client of the proposed plea’simpact on that status and attempting to negotiate a more advantageous disposition. (Counsel’sfailure to negotiate can also be a stand-alone claim, see, post, II[A][1][c]). The client must be ableto swear that, had s/he been aware of the plea’s consequences, s/he would have wanted counsel toseek the readily available immigration-safe(r) plea or to go to trial.

Remember that the court’s duty to advise the defendant of a plea’s immigration consequences is separate and distinct from counsel’s. See People v. Peque, 22 N.Y.3d 168, 190-91 (2013). Animmigration advisory from the court or the prosecutor cannot substitute for counsel’s tailored advice. See People v. Roberts, 143 A.D.3d 843 (2d Dep’t 2016)(stating, inter alia, that defense counsel’s“specific advisements . . . made with regard to the defendant's particular circumstances cannot besaid to be contradicted by a general admonishment from the prosecutor at the plea allocution, withoutany regard to the defendant's particular circumstances, that a plea of guilty may result indeportation”).

Duty to InquireOne version of the failure-to-advise claim is to assert that counsel failed to askher/his client if s/he was a non-citizen. The Second Department has stated that adefense attorney has the duty to inquire. See People v. Picca, 97 A.D.3d 170, 179 (2dDep’t 2012). You can develop such a claim by looking at the rap sheet, pre-sentencereport, and other documents that counsel would have seen that state a defendant’splace of birth or by considering the presence of a factor that would have put counselon notice (does the client have an accent, did s/he require an interpreter at courtappearances, or is there anything else overt that might suggest s/he was born inanother country). If the information you want to rely on is in the PSR or some otherdocument that came to light post-plea, it can be argued that the plea should have beenwithdrawn prior to sentencing. See C.P.L. § 220.60(3)(motion to withdraw plea canbe made any time prior to the imposition of sentence); see also People v. Tinsley, 35N.Y.2d 926, 927 (1974).

You may need to use the above to counter the People’s argument that the client eithermisled defense counsel by affirmatively stating s/he was a U.S. citizen or the Peopleotherwise asserting that defense counsel did not know or had no reason to know theclient’s immigration status.

Counsel’s Duty to Quantify the Immigration PerilCounsel arguably has a duty to “quantify.” In Padilla v. Kentucky, 559 U.S. 356, 369(2010), the Supreme Court explicitly stated that

-10-

[w]hen the law is not succinct and straightforward . . . , a criminaldefense attorney need do no more than advise a noncitizen client thatpending criminal charges may carry a risk of adverse immigrationconsequences. But when the deportation consequence is truly clear,as it was in this case, the duty to give correct advice is equally clear.

Thus, in Padilla, the Supreme Court rejected the adequacy of advice that deportationmay result when deportation would certainly result. Other jurisdictions insist on thisand New York should be no different. See, e.g., Encarnacion v. State, 295 Ga. 660,663 (2014)(“where, as here, the law is clear that deportation is mandatory andstatutory discretionary relief is unavailable, an attorney has a duty to accuratelyadvise his client of that fact . . . . It is not enough to say ‘maybe’ when the correctadvice is ‘almost certainly will’”); Com. v. DeJesus, 468 Mass. 174, 181–82(2014)(counsel’s advice inadequate when it suggested that “the law requiresadditional conditions to be met before an individual could be removed and allows forthe exercise of discretion in determining whether those conditions are met” when, infact, all of the conditions for removal were met simply by pleading guilty); Peoplev. Doumbia, ___ A.D.3d ___, 2017 WL 3850754 (1st Dep’t Sept. 5,2017)(insufficient to advise defendant that he may be subject to deportation when hefaced mandatory deportation).

Reverse PadillaA reverse Padilla claim is when a defendant was offered an immigration-safe(r) plea,but was not advised of the immigration benefits of the plea and opted to proceed totrial, an avenue that could only have led a conviction that would result in deportation(barring acquittal). This claim has to be calibrated. It works best when the evidenceis overwhelming and the only possible verdicts were deportable convictions; anattorney will have to weigh the factors when considering such a claim.

b. Failure to Advise (Convictions that were final before March 31, 2010)

First and foremost, a failure-to-advise claim can be raised regarding a pre-Padilla convictionon consent. Retroactivity is not jurisdictional, meaning that the People can consent to a 440 motionraising a pre-Padilla failure-to-advise claim and the 440 court is not obligated to “raise and decidethe issue [of retroactivity] sua sponte.” See Collins v. Youngblood, 497 U.S. 37, 41 (1990). Barringthat option, you can raise what is essentially a Padilla claim, but on State constitutional grounds, notFederal – the viability of such a claim is questionable, however, you may find you need it.

People v. Ford, 86 N.Y.2d 397 (1995), is often cited for the proposition that a defenseattorney is not required to advise a defendant of the collateral consequence of deportation. See, e.g.,People v. Soodoo, 109 A.D.3d 1014, 1015 (2d Dep’t 2013); People v. Picca, 97 A.D.3d 170, 177 (2dDep’t 2012). However, in Ford, 86 N.Y.2d at 404, the Court of Appeals found that defense

-11-

counsel’s failure “to warn defendant of the possibility of deportation” did not constitute violate theState constitution’s guarantee to counsel’s effective assistance because counsel had negotiated an“advantageous plea” of two to six years’ imprisonment when the defendant, charged with second-degree manslaughter and weapon possession counts, faced a prison sentence of up to 30 years. TheCourt’s holding was, therefore, based on the specific facts of that case and the very serious chargesthat defendant faced, and does not stand for the sweeping proposition that an attorney was under noprofessional obligation in that era to advise of immigration consequences. In addition, Ford is oflimited persuasiveness since it was decided prior to the Antiterrorism and Effective Death PenaltyAct (“AEDPA”) (effective April 24, 1996) and the Illegal Immigration Reform and ImmigrantResponsibility Act (“IIRIRA”) (effective April 1, 1997), which brought about a radical shift inimmigration law and the consequences for non-citizen defendants. See People v. Baret, 23 N.Y.3d777, 801 (2014)(Lippman, J., dissent)(casting doubt on Ford); see also INS v. St. Cyr, 533 U.S. 289,297 (2001)(discussing changes wrought by AEDPA and IIRIRA).

The Second Department stated in People v. Clarke, 116 A.D.3d 786, 787 (2d Dep’t 2014),that “the alleged failure of the defendant's attorney to advise him of the possibility that he might bedeported as a result of his pleas did not constitute deficient performance under either the federal orstate constitution at the time he entered those pleas.” While the State constitution was cited inpassing, only the federal right to counsel was asserted in the briefs; in other words, the Court reachedan issue that was not briefed. The Court of Appeals has not spoken on the State constitutionalquestion.

c. Failure to Negotiate

A failure-to-negotiate claim asserts that defense counsel failed to seek a better, readily-available disposition and applies to better pleas as well as better sentences. See, e.g., Vartelas v.Holder, 566 U.S. 257, 275 n.10 (2012) (“Armed with knowledge that a guilty plea would precludetravel abroad, aliens . . . might endeavor to negotiate a plea to a nonexcludable offense”); People v.Moore, 141 A.D.3d 604, 605-06 (2d Dep’t 2016)(“failure to advocate for a sentence that wouldresult in the same overall aggregate prison time for the defendant, but which would have resulted inno mandatory immigration consequences”). Defense counsel is obliged to seek the mostadvantageous outcome for her/his client. Thus, counsel is duty-bound to seek the best possible pleaand/or sentence. For authority in support of this, refer to the ABA Standards and other professionalstandards and advisories in effect at the time of the plea you are challenging.

In Padilla v. Kentucky, 559 U.S. 356, 373 (2010), the Court stated the following regardingnegotiation:

Counsel who possess the most rudimentary understanding of thedeportation consequences of a particular criminal offense may be ableto plea bargain creatively with the prosecutor in order to craft aconviction and sentence that reduce the likelihood of deportation, asby avoiding a conviction for an offense that automatically triggers the

-12-

removal consequence. At the same time, the threat of deportation mayprovide the defendant with a powerful incentive to plead guilty to anoffense that does not mandate that penalty in exchange for a dismissalof a charge that does.

This has been used to argue that counsel, properly informed about a client’s immigration needs,should seek to negotiate an immigration-safe(r) disposition. Thus, failure to negotiate should alwaysbe part of a failure-to-advise claim.

Failure to negotiate can also be a stand-alone claim. See, e.g., People v. Guzman, 150A.D.3d 1259 (2d Dep’t 2017)(misadvice claim without merit, but counsel ineffective under the NewYork Constitution for failing “to attempt to negotiate a plea to a crime that would not haveconstituted an aggravated felony under federal law, and therefore would not have subjected[defendant] to mandatory deportation”). This could be raised in a post-Padilla case where theattorney properly advised the client about the plea’s immigration consequences, but did not attemptto negotiate a readily available immigration-safe(r) disposition. It can be raised in a pre-Padilla casewhere there was a better plea and/or sentence (divorced from immigration considerations) thatcounsel failed to seek. For example, the client pled to third-degree drug sale, but the standard pleaoffered to a similarly-situated defendant was seventh-degree drug possession. The standard practiceat the time can be established with an affirmation from an attorney practicing during that time period. Or failure to negotiate can be alleged in the context of a pre-Padilla misadvice claim: once counselidentified the plea’s harm, s/he had the duty to take steps to avoid or to mitigate that harm.

People v. Clarke, 116 A.D.3d 786, 787 (2d Dep’t 2014), is sometimes cited for the blanketproposition that counsel’s duty to seek to negotiate is not retroactive. Clarke simply reiterated thatPadilla is not retroactive and thus did not apply to a failure-to-negotiate claim that was intertwinedwith a pre-Padilla failure-to-advise claim. In Guzman, 150 A.D.3d 1259, the Second Departmentfound a pre-Padilla State constitutional duty to negotiate an immigration-safe(r) plea for a non-citizen client when counsel had endeavored to advise that client about the plea’s immigrationconsequences.

d. Misadvice About Immigration Consequences

Counsel’s performance is deficient if s/he chooses to advise a client about a plea’simmigration consequences and, in doing so, misadvises her/his client. There is no issue as to theretroactivity of this claim. See Kovacs v. United States, 744 F.3d 44 (2d Cir. 2014); People v.McDonald, 1 N.Y.3d 109 (2003).

-13-

Affirmative Misadvice

Affirmative misadvice is when a defense attorney provides advice that is patentlywrong, such as stating that a plea is immigration-safe when it renders the defendantdeportable. See, e.g., People v. McDonald, 1 N.Y.3d 109, 115 (2003)(counsel made“affirmative misrepresentation” by advising defendant “that he would not be subjectto deportation because he was a long-term resident of the United States and his threechildren were American citizens by birth and live in the United States” when he was,in fact, mandatorily deportable).

Misleading Advice

Misleading advice is just as damaging as affirmative misadvice, but the claim is moreelusive for the courts. Misleading advice is typically advice that is partially corrector has omitted a key component but, when looked at as a whole, is misleading. Themost obvious example is when counsel tells the client that the plea renders her/himdeportable, but omits that the plea is to a mandatorily deportable offense. Here is aquote that sums up misleading advice:

Warning of the possibility of a dire consequence is no substitute forwarning of its virtual certainty. As Judge Robert L. Hinkle explained,“Well, I know every time that I get on an airplane that it could crash,but if you tell me it's going to crash, I'm not getting on.” United Statesv. Choi, Case No. 4:08–CV–00386–RH, Transcript, Docket No. 96,at 52 (D.Fla. Sept. 30, 2008).

United States v. Rodriguez-Vega, 797 F.3d 781, 790 (9th Cir. 2015).

When briefing such a claim, look for cases that have fact-patterns similar to the caseyou are handling and/or that have language about “inaccurate” or “misleading”advice. See, e.g., Padilla v. Kentucky, 559 U.S. 356, 382 (2010) (“[i]ncomplete legaladvice” about a plea and its impact on a client’s deportability or inadmissibility “maybe worse than no advice at all because it may mislead and may dissuade the clientfrom seeking advice from a more knowledgeable source”; emphasis added) (Alito,J., concurring); United States v. Kwan, 407 F.3d 1005, 1008, 1015 (9th Cir.2005)(counsel “effectively misled” client when he “assured Kwan that although therewas technically a possibility of deportation, ‘it was not a serious possibility’ . . . .based ‘on his knowledge and experience’”); United States v. Couto, 311 F.3d 179,183 (2d Cir. 2002)(counsel told mandatorily deportable client that while the plearendered her deportable, “there were many things that could be done to prevent herfrom being deported”); People v. Baret, 23 N.Y.3d 777, 785 (2014)(acknowledgingprecedent that “inaccurate advice about a guilty plea's immigration consequencesconstituted ineffective assistance under the Federal Constitution”); see also Com. v.DeJesus, 468 Mass. 174, 181–82 (2014)(advising defendant that he was “eligible fordeportation” and would “face deportation” “convey[ed] that the law requires

-14-

additional conditions to be met before an individual could be removed and allows forthe exercise of discretion in determining whether those conditions are met,” whichwas inaccurate since “all of the conditions necessary for removal would be met bythe defendant's guilty plea, and that, under Federal law, there would be virtually noavenue for discretionary relief once the defendant pleaded guilty and that fact cameto the attention of Federal authorities”).

e. Failure to Investigate

“[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision thatmakes particular investigations unnecessary.” Strickland v. Washington, 466 U.S. 668, 691 (1984);see also People v. Oliveras, 21 N.Y.3d 339, 346 (2013) (attorney's investigation of law, facts, andrelevant issues is “[e]ssential” to counsel’s representation and to “consideration of the best courseof action on behalf of the client that are relevant to the case”); People v. Bennett, 29 N.Y.2d 462, 466(1972) (defendant entitled to counsel’s “appropriate investigations, both factual and legal, todetermine if matters of defense can be developed, and to allow himself time for reflection andpreparation for trial”). The most obvious example of the failure to investigate is when counsel failsto look into the availability of a defense, such as when witnesses come forward and proffer an alibi.

f. Failure to Prepare

The failure to investigate and the failure to prepare are somewhat related and thusintertwined. The failure to prepare is when, for example, defense counsel cross-examines a keysuppression hearing witness poorly, including that counsel does not use discovery turned over bythe People, thus evidencing that s/he was not adequately prepared with the facts in order toeffectively challenge that witness. See, e.g., People v. Droz, 39 N.Y.2d 457, 462 (1976) (“it iselementary that the right to effective representation includes the right to assistance by an attorneywho has taken the time to review and prepare both the law and the facts relevant to the defense andwho is familiar with, and able to employ at trial basic principles of criminal law and procedure”;internal citation omitted); People v. Bennett, 29 N.Y.2d 462, 466 (1972) (defendant entitled tocounsel’s “appropriate investigations, both factual and legal, to determine if matters of defense canbe developed, and to allow himself time for reflection and preparation for trial”). Another exampleis if defense counsel did not identify an available defense and, therefore, did not use that factor inplea negotiations in order to obtain a more beneficial disposition. See Kimmelman v. Morrison, 477U.S. 365, 384 (1986) (adversarial “testing process generally will not function properly unless defensecounsel has done some investigation into the prosecution's case and into various defense strategies”);see also United States v. Caracappa, 614 F.3d 30, 46–47 (2d Cir. 2010) (same); Greiner v. Wells,417 F.3d 305, 320 (2d Cir.2005) (same).

-15-

g. Failure to Convey a Plea Offer

Counsel’s performance is deficient when s/he fails to tell the defendant about a favorable pleaoffer (not just the fact that a plea offer was extended, but its terms as well) that has been profferedby the People. Missouri v. Frye, 566 U.S. 133, 145 (2012) (“as a general rule, defense counsel hasthe duty to communicate formal offers from the prosecution to accept a plea on terms and conditionsthat may be favorable to the accused”).

h. Failure to Advise or to Accurately Advise Regarding the Desirability of anOffer, Including Accurate Advice About a Plea’s Material Aspects orConsequences

A defendant’s decision to enter a plea of guilty must be an informed one; defense counselmust accurately advise her/his client regarding the desirability of a plea offer. See Purdy v. UnitedStates, 208 F.3d 41, 44–45 (2d Cir. 2000); Boria v. Keane, 99 F.3d 492, 496 (2d Cir. 1996); see alsoVon Moltke v. Gillies, 332 U.S. 708, 721 (1948) (“[A]n accused is entitled to rely upon his counsel. . . to offer his informed opinion as to what plea should be entered”). The basic claim is that counselgave bad advice resulting in the acceptance or rejection of a plea when a different disposition wouldhave been sought, had the correct advice been given. See Lafler v. Cooper, 566 U.S. 156 (2012);Hill v. Lockhart, 474 U.S. 52 (1985). An example of this error by counsel is where counselmisapprehends a defendant’s predicate status or otherwise misidentifies the sentencing range. See,e.g., United States v. Gordon, 156 F.3d 376, 380 (2d Cir.1998) (counsel ineffective for erroneouslyadvising that defendant was subject to a lower sentencing range); People v. Butler, 94 A.D.2d 726,726 (2d Dep’t 1983)(attorney unable to effectively counsel defendant whether to accept plea to lesseroffense when he did not know defendant faced conviction of violent felony offense, which carriedmandatory incarceration term). Or it could be considered when counsel misadvised the client abouta consequence that the client specifically inquired about (for example, the client specifically asks ifthe plea will subject him to the Sex Offender Registration Act and the attorney erroneously statesthat it will not).

2. Prejudice

In addition to asserting that plea or trial counsel made an error, you must show that the errorprejudiced the defendant, which will be different for every client. (Prejudice or a prejudice-typeanalysis can also be part of other, non-IAC claims.) To demonstrate prejudice under Strickland’ssecond prong in a case involving a guilty plea, “a defendant must show the outcome of the pleaprocess would have been different with competent advice.” Lafler v. Cooper, 566 U.S. 156, 163

-16-

(2012); see also Strickland v. Washington, 466 U.S. 668, 694 (1984)(defendant must show“reasonable probability” that, but for counsel’s unprofessional errors, the result of the proceedingwould have been different”). New York’s “meaningful representation” standard

does not require a defendant to fully satisfy the prejudice test ofStrickland, although we continue to regard a defendant's showing ofprejudice as a significant but not indispensable element in assessingmeaningful representation, whose prejudice component focuses onthe fairness of the process as a whole rather than its particular impacton the outcome of the case.

People v. Caban, 5 N.Y.3d 143, 155–56 (2005) (internal quotations and citations omitted); see alsoPeople v. Ozuna, 7 N.Y.3d 913, 915 (2006).

There are two main considerations here: was the defendant prejudiced because s/he couldhave gotten a better deal either by negotiating or insisting on going to trial; and would the rejectionof the proposed plea have been reasonable. The prejudice analysis will be different for every client,depending on her/his unique life story. You will want to consider, for example, if a betterdisposition was readily available and the likelihood of its attainability; the strength of the client’s tiesto the U.S. (at the time of the plea and now – you can easily turn the focus on her/his presentsituation by stating that s/he clearly intended to put down roots in the United States, because lookat how her/his life turned out – s/he married, had children, bought a home, etc.) as compared toher/his country of origin; the ramifications for the client of returning to the country of origin – somecountries stigmatize or indefinitely detain criminal deportees; and any other relevant factor, such asthe health status of the client or a family member.

The key Supreme Court case on prejudice is Lee v. United States, 137 S. Ct. 1958 ( 2017). The case centers on showing prejudice to a non-citizen when going to trial has slim to no chance ofsuccess. It contains good language, including the following:

We cannot agree that it would be irrational for a defendant in Lee'sposition to reject the plea offer in favor of trial. But for his attorney'sincompetence, Lee would have known that accepting the pleaagreement would certainly lead to deportation. Going to trial? Almostcertainly. If deportation were the “determinative issue” for anindividual in plea discussions, as it was for Lee; if that individual hadstrong connections to this country and no other, as did Lee; and if theconsequences of taking a chance at trial were not markedly harsherthan pleading, as in this case, that “almost” could make all thedifference. Balanced against holding on to some chance of avoidingdeportation was a year or two more of prison time. Not everyone inLee's position would make the choice to reject the plea. But wecannot say it would be irrational to do so.

Id. at 1968-69 (internal citation omitted).

-17-

The Second Department’s leading case on evaluating prejudice under the federal standardis People v. Picca, 97 A.D.3d 170 (2d Dep’t 2012). In Picca, the Second Department stated that,when applying the “rationality standard” in the prejudice context, the courts cannot “substitute theirjudgment for that of the defendant”: the inquiry is not whether “a decision to reject a plea of guiltywas the best choice, but only whether it is a rational one,” even if there is only a “slim” chance ofbeing acquitted. Id. at 184-85. Indeed, the Second Department emphasized that while, for a citizen,the strength of the evidence against him and the potential sentence if convicted “likely bear thegreatest weight in a decision of whether to accept a plea offer,” for a noncitizen, removal from theUnited States is a “unique consequence” of a conviction, and “avoiding exile from this country” maybe of “primary import[].” Id. at 183. Accordingly,

an evaluation of whether an individual in the defendant’s positioncould rationally reject a plea offer and proceed to trial must take intoaccount the particular circumstances informing the defendant’s desireto remain in the United States. Those particular circumstances mustthen be weighed along with other relevant factors, such as thestrength of the People’s evidence, the potential sentence, and theeffect of prior convictions.

Id. at 184.

B. The Due Process Claims

1. Involuntary and Unknowing Plea

This is a due process claim, asserting that the plea was involuntary and unknowing based onsome fact that was not apparent from the appellate record. Such a claim is not necessarilyimmigration-related. This category is fact-specific and, therefore, broad. You can consider raisingany direct appeal issue as long as you can find a key fact that is based on off-the-record material inorder to make it a 440 claim. The most common ways a plea is involuntary and unknowing are thepresence of a defendant characteristic that was not known when s/he took the plea, such as dementia,illiteracy, mental or physical illness, or the client had an interpreter who did not speak her/hislanguage. See Brady v. United States, 397 U.S. 742, 749 (1970); People v. Francis, 38 N.Y.2d 150,154 (1975); People v. Mills, 103 A.D.2d 379, 388 (2d Dep’t 1984).

2. The Court’s Failure to Advise the Defendant of the Plea’s Immigration Consequences

Since 1995, the Criminal Procedure Law has stated that plea courts “must” advise adefendant, prior to entering a plea, that the “plea of guilty and the court's acceptance thereof mayresult in the defendant's deportation, exclusion from admission to the United States or denial of

-18-

naturalization pursuant to the laws of the United States.” C.P.L. § 220.50(7). But this was a rightwithout a remedy until People v. Peque, 22 N.Y.3d 168 (2013). See also People v. Martial, 50Misc.3d 131(A) (App. Term, 2d Dep’t 2015)(assuming Peque applies to misdemeanor pleas). APeque claim is considered a direct appeal issue (if the Appellate Division agrees that there was aPeque violation, the case is remanded to the lower court to establish prejudice). The establishmentof prejudice, which includes an inquiry into what defense counsel advised the defendant, makes thissupposedly direct appeal claim sound very much like a typical 440 issue. The Court of Appeals hasnot stated that a Peque claim can only be raised on direct appeal nor has the Court held whetherPeque is retroactive or not – only the First Department has ruled negatively on both issues. SeePeople v. Shabaan, 138 A.D.3d 407, 408 (1st Dep’t 2016)(Peque claim “not cognizable” on 440motion); People v. Llibre, 125 A.D.3d 422, 424 (1st Dept 2015)(Peque not retroactively applicableto final convictions). This claim can be considered when, for example, the court omitted theadvisory or gave one that was misleading, either on its face or when considered along with defensecounsel’s advice, or if there is any way to argue a 440 is necessary because a key fact – like theclient’s actual immigration status – is off-the-record information.

C. Other Claims

1. Cruel and Unusual Punishment

A cruel and unusual punishment claim asserts that the sanction of deportation, in additionto the negotiated sentence, is unconstitutionally disproportionate to the client’s crime. See Solemv. Helm, 463 U.S. 277, 284 (1983); People v. Thompson, 83 N.Y.2d 477, 479 (1994). This is aviable claim when one has a very sympathetic client, such as a chronically ill Haitian national. Sucha claim is essentially a vehicle to get the District Attorney to consider negotiating a disposition.

2. Error Coram Nobis

Any claim that trial counsel was ineffective for failing to file a timely notice of appeal isbrought via petition for writ of error coram nobis filed in the Appellate Division. See People v.Syville, 15 N.Y.3d 391 (2010). It goes without saying that a motion for a late notice of appealshould be filed for any client within the year and thirty days from sentencing. For those clients whohave conviction dates that preclude such a motion, consider bringing a coram nobis petition. Adirect appeal may provide a sufficient opportunity to challenge the conviction or, at a minimum,make the removable conviction non-final.

Coram nobis is a flexible writ that is available when all other means have been exhaustedand injustice results. (For an overview, look at David Wolitz, The Stigma of Conviction: Coram

-19-

Nobis, Civil Disabilities, and the Right to Clear One’s Name, 2009 B.Y.U. L. Rev. 1277 [2009].)You could petition for the writ in that difficult situation where you have no other options and asympathetic client. For example, a defendant who took an up-front plea to a felony in treatmentcourt, successfully undergoes treatment, and then pleads to a benign misdemeanor after the felonyplea is vacated. That up-front plea can be a problem in immigration court – but how do you vacateand properly dismiss something that has already been vacated? A writ of error coram nobis arguablyfills that gap. Such a petition would be filed in the sentencing court.

-20-