People v. Doumbia

Appellate Division of the Supreme Court of New York

People v. Doumbia

2017 NY Slip Op 6402, 153 A.D.3d 1139, 60 N.Y.S.3d 157

CourtAppellate Division of the Supreme Court of the State of New York

DecidedSeptember 5, 2017

Docket4269 3845/12

StatusPublished

Cited by16 cases

This text of 2017 NY Slip Op 6402 (People v. Doumbia) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Doumbia, 2017 NY Slip Op 6402, 153 A.D.3d 1139, 60 N.Y.S.3d 157 (N.Y. Ct. App. 2017).

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Opinions

Appeal from judgment, Supreme Court, New York County (Renee A. White, J.), rendered April 2, 2013, as amended September 11, 2013, convicting defendant, upon his plea of guilty, of attempted robbery in the second degree, and sentencing him to a term of two years, held in abeyance, and the matter remanded for further proceedings in accordance herewith.

The existing, unexpanded record is sufficient to establish that defendant received ineffective assistance of counsel. Defendant was deprived of effective assistance when his counsel failed to advise him that his guilty plea to an aggravated felony would result in mandatory deportation. Since an aggravated felony results in mandatory deportation (see People v Corporan, 135 AD3d 485, 485-486 [1st Dept 2016] [a guilty plea to an aggravated felony “triggered mandatory deportation under federal law”]), counsel is under a duty to provide clear advice as to that consequence. It is thus ineffective assistance to advise a noncitizen of a mere risk or possibility that he “could be deported” (see e.g. United States v Bonilla, 637 F3d 980, 984 [9th Cir 2011] [“(a) criminal defendant who faces almost certain deportation (for committing an aggravated felony) is entitled to know more than that it is possible that a guilty plea could lead to removal; he is entitled to know that it is a virtual certainty”]; Encarnacion v State, 295 Ga 660, 663, 763 SE2d 463, 466 [2014] [“where, as here, the law is clear that deportation is mandatory (for the aggravated felony of burglary) ... an attorney has a duty to accurately advise his client of that fact” [1140]*1140and it is not sufficient that the client is merely advised deportation might occur or was a risk of conviction]).

The dissent misses the point. Contrary to the dissent’s assertion, defendant’s “unique circumstances” do not change the fact that defendant was subject to mandatory deportation. Lawyers have an affirmative duty to adequately inform their clients about the serious effects of criminal convictions to the extent, and with as much specificity, as possible. Once a defense attorney determines that a client is not a U.S. citizen, the attorney is required to implement the Sixth Amendment protection to which noncitizen defendants are entitled. As Padilla v Kentucky (559 US 356 [2010]) clarified, if “the deportation consequence is truly clear” from reading the Immigration and Nationality Act, “the duty to give correct advice is equally clear” (559 US at 369).

In this case, the dissent cannot, and does not, argue that the immigration consequences of defendant’s guilty plea to an aggravated felony were truly clear. Instead, the dissent excuses defense counsel’s nebulous advice because “it is unclear from the record whether counsel’s strategy included pursuing youthful offender status to avoid removal.” The dissent also excuses defense counsel’s vague advice because defense counsel may have been pursuing other strategy for avoiding the virtual certainty of deportation. In essence, what the dissent proposes is that since there may be avenues available for avoiding even certain deportations, defense counsel only has a duty to inform a noncitizen that there is a risk or possibility that he or she may be deported. Such a standard would not only seriously undermine the Sixth Amendment protection to which nonciti-zen defendants are entitled, but would also conflict with the concept of a truly informed plea agreement (see Padilla at 373-374 [“In sum, we have long recognized that the negotiation of a plea bargain is a critical phase of litigation for purposes of the Sixth Amendment right to effective assistance of counsel”]; see generally Strickland v Washington, 466 US 668, 684 [1984] [holding that the right to counsel is protected by the Sixth Amendment, making a claim of ineffective assistance a constitutional claim]).

On remand, defendant should be afforded the opportunity to move to vacate his plea upon a showing that there is a “reasonable probability” that he would not have pleaded guilty had he been made aware of the deportation consequences of his plea (see People v Peque, 22 NY3d 168, 199-200 [2013]; see also People v Corporan, 135 AD3d 485 [2016]; People v Chacko, 99 AD3d 527 [1st Dept 2012], lv denied 20 NY3d 1060 [2013]). Ac[1141]*1141cordingly, we remit for the remedy set forth in Peque (22 NY3d at 200-201), and hold the appeal in abeyance for that purpose.

Concur — Renwick, Manzanet-Daniels and Kapnick, JJ.

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Appeal from judgment, Supreme Court, New York County (Renee A. White, J.), rendered April 2, 2013, as amended September 11, 2013, convicting defendant, upon his plea of guilty, of attempted robbery in the second degree, and sentencing him to a term of two years, held in abeyance, and the matter remanded for further proceedings in accordance herewith.

The existing, unexpanded record is sufficient to establish that defendant received ineffective assistance of counsel. Defendant was deprived of effective assistance when his counsel failed to advise him that his guilty plea to an aggravated felony would result in mandatory deportation. Since an aggravated felony results in mandatory deportation (see People v Corporan, 135 AD3d 485, 485-486 [1st Dept 2016] [a guilty plea to an aggravated felony “triggered mandatory deportation under federal law”]), counsel is under a duty to provide clear advice as to that consequence. It is thus ineffective assistance to advise a noncitizen of a mere risk or possibility that he “could be deported” (see e.g. United States v Bonilla, 637 F3d 980, 984 [9th Cir 2011] [“(a) criminal defendant who faces almost certain deportation (for committing an aggravated felony) is entitled to know more than that it is possible that a guilty plea could lead to removal; he is entitled to know that it is a virtual certainty”]; Encarnacion v State, 295 Ga 660, 663, 763 SE2d 463, 466 [2014] [“where, as here, the law is clear that deportation is mandatory (for the aggravated felony of burglary) ... an attorney has a duty to accurately advise his client of that fact” [1140]*1140and it is not sufficient that the client is merely advised deportation might occur or was a risk of conviction]).

The dissent misses the point. Contrary to the dissent’s assertion, defendant’s “unique circumstances” do not change the fact that defendant was subject to mandatory deportation. Lawyers have an affirmative duty to adequately inform their clients about the serious effects of criminal convictions to the extent, and with as much specificity, as possible. Once a defense attorney determines that a client is not a U.S. citizen, the attorney is required to implement the Sixth Amendment protection to which noncitizen defendants are entitled. As Padilla v Kentucky (559 US 356 [2010]) clarified, if “the deportation consequence is truly clear” from reading the Immigration and Nationality Act, “the duty to give correct advice is equally clear” (559 US at 369).

In this case, the dissent cannot, and does not, argue that the immigration consequences of defendant’s guilty plea to an aggravated felony were truly clear. Instead, the dissent excuses defense counsel’s nebulous advice because “it is unclear from the record whether counsel’s strategy included pursuing youthful offender status to avoid removal.” The dissent also excuses defense counsel’s vague advice because defense counsel may have been pursuing other strategy for avoiding the virtual certainty of deportation. In essence, what the dissent proposes is that since there may be avenues available for avoiding even certain deportations, defense counsel only has a duty to inform a noncitizen that there is a risk or possibility that he or she may be deported. Such a standard would not only seriously undermine the Sixth Amendment protection to which nonciti-zen defendants are entitled, but would also conflict with the concept of a truly informed plea agreement (see Padilla at 373-374 [“In sum, we have long recognized that the negotiation of a plea bargain is a critical phase of litigation for purposes of the Sixth Amendment right to effective assistance of counsel”]; see generally Strickland v Washington, 466 US 668, 684 [1984] [holding that the right to counsel is protected by the Sixth Amendment, making a claim of ineffective assistance a constitutional claim]).

On remand, defendant should be afforded the opportunity to move to vacate his plea upon a showing that there is a “reasonable probability” that he would not have pleaded guilty had he been made aware of the deportation consequences of his plea (see People v Peque, 22 NY3d 168, 199-200 [2013]; see also People v Corporan, 135 AD3d 485 [2016]; People v Chacko, 99 AD3d 527 [1st Dept 2012], lv denied 20 NY3d 1060 [2013]). Ac[1141]*1141cordingly, we remit for the remedy set forth in Peque (22 NY3d at 200-201), and hold the appeal in abeyance for that purpose.

Concur — Renwick, Manzanet-Daniels and Kapnick, JJ.

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2017 NY Slip Op 6402, 153 A.D.3d 1139, 60 N.Y.S.3d 157, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-doumbia-nyappdiv-2017.

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