Written by attorney Nicklaus James Misiti

Boiler Plate Law for Ineffective Assistance of Counsel claims in New York

Under the Constitution of the United States, the determination of effective assistance of counsel turns on whether the representation was "reasonable under the prevailing professional norms." See, Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 2065 (1984). New York law requires an assessment of whether "… the evidence, the law and circumstances of a particular case, viewed together and as of the time of representation, reveals that meaningful representation was provided." See, People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S. 893, 898 (1981); People v. Satterfield, 66 N.Y.2d 796, 799, 497 N.Y.S2d 903, 908 (1985).

The recent Supreme Court decision, Padilla v. Kentucky, No. 08-651, 2010 U.S. LEXIS 2928 (March 31, 2010), held that criminal defense counsel must inform a client whether their plea carries a risk of immigration consequences. Where such advice is insufficient the defendant has sufficiently alleged that his counsel was constitutionally deficient.

In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court adopted a two-part test for evaluating claims of ineffective counsel generally. The second part of the Strickland test requires a defendant to show that the deficient performance [of counsel] prejudiced the defense. 466 U.S. 668, 687 (1984).

In Hill v. Lockhart, 474 U.S. 52 (1985), the Supreme Court explained the second part of the Strickland test, also known as the "prejudice" part, which focused on whether counsel’s constitutionally ineffective performance affected the outcome of the plea process. 474 U.S. 52, 59 (1985).

In People v. McDonald, 1 N.Y. 3d 736, 769 N.Y.S.2d 781 (2003), New York Court of Appeals, relying on the Strickland test, held that in order for a defendant to establish ineffective assistance of counsel, defendant’s allegation must be sufficient to show that there is a reasonable probability that, but for counsel’s error, he would not have pleaded guilty and would have insisted on going to trial. 1 N.Y.3d 109, 114-115, 769 N.Y.S.2d 781, 784-785 (2003).

In McDonald, the supporting affirmation annexed to the defendant’s motion was made by his trial counsel. The affirmation merely stated that counsel misinformed the defendant as to deportation consequences of his guilty plea, but failed to allege that, but for the counsel’s error, the defendant would not have pleaded guilty. 1 N.Y.3d 109, 115 (2003).

In People v. Augusto, 22 Misc.3d 140, 881 N.Y.S.2d 365 (2009), the defendant in that case moved pursuant to CPL 440.10 to vacate a judgment convicting him, upon his plea of guilty, of attempted possession of a controlled substance in the seventh degree. In support of the motion, the defendant argued that he was denied his right to the effective assistance of counsel during the plea allocation because he was given erroneous advice from his attorney as to the immigration consequences of his plea. The evidence adduced at the hearing established that the defendant’s attorney advised him that there would be no immigration consequences upon taking the plea. The defendant testified further that he was subject to deportation as a result of the plea. Applying the law set by the Court of Appeals in People v. McDonald, 1 N.Y. 3d 109 (2003), the Appellate Division of the Supreme Court, Second Department, held that the defendant’s testimony that he would not have pleaded guilty but, rather, would have gone to trial had he been correctly informed of the consequences of his guilty, was sufficient to constitute a legal basis for the relief requested by the defendant, and affirmed the lower court’s order granting the motion to vacate the judgment of conviction. People V. Augusto, 22 Misc.3d 140, 881 N.Y.S.2d 365 (2009).

In People v. Marshall, 2009 NY Slip Op 07519 (N.Y. App. Div. Oct. 22 2009), the defendant in the case pleaded guilty to criminal possession of a controlled substance in the fourth degree and waived his right to appeal in return for an agreement that he receive a prison sentence of 3 to 6 years. 2009 NY Slip. Op. 07519 (N.Y. App. Div. Oct. 22 2009). While the defendant's direct appeal of this conviction was pending, the US Immigration and Naturalization Service served upon him a notice that, as a result of his conviction, deportation proceedings would be initiated against him. The defendant moved to vacate the judgment pursuant to CPL 440.10 because, as the defendant claimed, he only pleaded guilty in reliance on his counsel's assurance that the resulting conviction would not mandate his deportation under federal law. The Albany County Court denied a hearing to decide defendant's CPL 440.10 motion. The defendant alleged that his counsel made an "assurance that he would not have to worry about Immigration trying to deport him" if he accepted the plea bargain and entered a guilty plea. 2009 NY Slip. Op. 07519 (N.Y. App. Div. Oct. 22 2009). Appellate Division of Supreme Court, Third Department, noted that "federal law requires that all deportable aliens be removed from the United States and defines a deportable alien as one who has been convicted of "a violation of . . . any law or regulation of a [s]tate, the United States, or a foreign country relating to a controlled substance (as defined in [21 USC § 802]), other than a single offense involving possession for one's own use of 30 grams or less of marijuana." 2009 NY Slip. Op. 07519 (N.Y. App. Div. Oct. 22 2009). The court reversed the Albany County Court’s order and held that, given defendant's insistence that he would not have pleaded guilty but for his reliance on this alleged misstatement by counsel of applicable federal law, the county court should have held a hearing prior to deciding defendant's CPL 440.10 motion. 2009 NY Slip Op 07519 (N.Y. App. Div. Oct. 22 2009).

Nicklaus Misiti ( is Chief Attorney and CEO of Misiti Global,PLLC. Please feel free to contact Atty Nicklaus Misiti ( with any questions or for a free consultation regarding your immigration matter. He can be reached at 212 537 4407 or you can fill out the form on his website

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Misiti Global, PLLC, owned by Nicklaus Misiti is experience in these types of waivers and offers free consultations and case evaluations. For a free consultation contact Atty Nicklaus Misiti at 212 537 4407 or fill out the form on our website

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