Category Archives: App. Term 2d Dept.

Padilla held retroactive

In People v. Nunez (2d App. Term 12/15/2010), the defendant plead guilty to Criminal Possession of a Controlled Substance 7° in 1997.  Over a decade later, the defendant moved to vacate his judgment on the ground of ineffective assistance of counsel. Specifically, he argued: (1) his attorney provided him with incorrect advice regarding the immigration consequences of pleading guilty; and (2) his attorney had a conflict of interest because he was employed by the same firm previously representing a person arrested with defendant on an unrelated matter. 

In Padilla v. Kentucky, the U.S. Supreme Court held that the Strickland ineffective assistance analysis requires attorneys to inform their clients of immigration consequences resulting from a guilty plea.   Deportation is an integral part of the penalty potentially applying to noncitizens pleading guilty to specified crimes, rendering the accuracy of legal advice critical. 

According to the Appellate Term, Padilla involved an application of well-established “old” rules (ineffective assistance of counsel) to a new set of facts (deportation consequences). “Old” rules are distinguished from “new” rules as new rules render results not dictated by precedent existing at the time the defendant’s conviction became final. Cases involving old rules applied to new factual circumstances are given retroactive effect. The court concluded that Padilla should therefore be applied retroactively. 

The case was reversed and remanded for a factual hearing to determine if, in fact, the defense attorney provided the Defendant with proper immigration advice in connection with the criminal plea.  There was no basis for a hearing on the conflict of interest claim, however. (RB/LC)

AT1 & AT2 – New Decisions

There are new decisions from the First Appellate Term and the Second Appellate Term.  (LC)

New Decisions

There are new decisions from nearly every court!

First, the Court of Appeals (summaries of these will be posted later this week):

  • People v. Dreyden (Ct. App. 6/15/2010) (Pigott, J.) (6-1) – accusatory instrument deficient if it does not demonstrate how a knife is a "gravity knife"
  • People v. Mitchell (Ct. App. 6/15/2010) (Read, J.) (7-0) – transfer of case for probation supervision does not transfer authority to decide 440 motion 
  • People v. Ballman (Ct. App. 6/10/2010) (Lippman, C.J.) (7-0) – elevation of DWI for out of state conviction prior to 2006
  • People v. McLean (Ct. App. 6/10/2010) (Smith, J.) (4-3) – preservation of right to counsel violation claim
  • People v. Frederick (Ct. App. 6/10/2010) (7-0) – retrial issues

There are also new decisions from the First, Second, Third, and Fourth Departments, along with the Second Appellate Term.  (LC)

AT2 – New Decisions

There are new decisions from the Second Appellate Term, including an interesting case where the court rejected an Anders brief.

AT2 reverses 30.30 grant

In pre-readiness, discovery periods are typically excludable.  However, since the delay must be "reasonable," CPL § 30.30(4), the People can be charged with the time if they drag their proverbial feet in providing the defense with discovery.  In post-readiness, however, the calculation is different. 

In People v. Cecala (2d App. Term 5/5/2010), the local criminal court dismissed the misdemeanor prosecution on 30.30 grounds after the People failed to meet several discovery deadlines. However, the delay all occurred after the People had made an effective statement of readiness.  Thus, the delay was due to the People's "alleged failure to comply with the defendant's discovery demands and
did not pose an impediment to commencement of the trial itself" and thus "the
[Criminal] Court erred in dismissing the [accusatory instrument] rather
than imposing a less severe sanction" (quoting People v. Caussade, 162 AD2d 4, 11 [1990]).  (LC)