                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 9, 2015                      106971
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

PATRICE RICKETTS-SIMPSON,
                    Appellant.
________________________________


Calendar Date:   June 3, 2015

Before:   Peters, P.J., McCarthy, Egan Jr. and Rose, JJ.

                             __________


     Frederick Korkosz, Albany, for appellant.

      P. David Soares, District Attorney, Albany (Vincent Stark
of counsel), for respondent.

                             __________


Peters, P.J.

      Appeal, by permission, from an order of the County Court of
Albany County (Herrick, J.), entered August 12, 2014, which
denied defendant's motion pursuant to CPL 440.10 to vacate a
judgment convicting her of the crime of rape in the third degree,
without a hearing.

      Defendant, a native of Jamaica with permanent residence
status in the United States, pleaded guilty to rape in the third
degree and was sentenced to 10 years of probation. More than a
decade later, after deportation proceedings were initiated
against her based upon her rape conviction, defendant moved to
vacate the judgment of conviction pursuant to CPL 440.10.
Specifically, defendant claimed that she was denied the effective
assistance of counsel and that her plea was not knowing and
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voluntary because her attorney did not inform her of the
deportation consequences of her guilty plea – and in fact
affirmatively misadvised her in that regard – and failed to
investigate her mental health condition and possible defenses
related thereto. County Court denied the motion without a
hearing, and defendant now appeals by permission.

      County Court properly denied a hearing on that aspect of
defendant's motion concerning counsel's failure to inquire into
her competency and mental health issues. In support of her claim
that counsel was deficient in that regard, defendant submitted a
psychological evaluation performed more than a decade after she
entered the plea, in which a psychologist expressed her belief
that defendant was not "fully able to meaningfully understand the
consequences of her plea bargain" because she suffered from
paranoid schizophrenia. It is undisputed, however, that
defendant had not yet been diagnosed at the time of the plea, and
she does not claim that she disclosed her alleged mental health
problems to counsel at any time prior thereto. Nor is there
anything in the record to suggest that defendant's ability to
understand the proceedings was impaired or that defense counsel
should have had any doubts concerning her capacity to enter a
knowing and voluntary plea. To the contrary, the plea minutes
confirm that defendant actively participated in the colloquy,
affirmatively acknowledged that she understood the nature of her
rights and the consequences of her plea, answered the court's
questions intelligently and demonstrated a clear and coherent
recollection of the events surrounding the crime to which she was
pleading. Under these circumstances, counsel's failure to
investigate or raise the issue of defendant's competency cannot
constitute ineffective assistance (see People v Mack, 90 AD3d
1317, 1321-1322 [2011]; People v Jenks, 69 AD3d 1120, 1122
[2010], lv denied 14 NY3d 841 [2010]; People v Roberge, 293 AD2d
913, 915 [2002], lv denied 98 NY2d 680 [2002]).

      Defendant's claim that counsel was ineffective for failing
to advise her of the deportation consequences of her plea is
grounded upon the rule enunciated in Padilla v Kentucky (559 US
356, 368-369 [2010]), which was decided after defendant's
conviction became final and has no retroactive application to
this appeal (see Chaidez v United States, ___ US ___, ___, 133 S
                              -3-                106971

Ct 1103, 1105 [2013]; People v Baret, 23 NY3d 777, 782 [2014],
cert denied ___ US ___, 135 S Ct 961 [2015]). However,
defendant's distinct claim that counsel affirmatively misinformed
her about the plea's deportation consequences is not dependent
upon Padilla; rather, it rests upon established law at the time
of her plea that defense counsel's affirmative misrepresentation
to a noncitizen regarding the deportation consequences of a
contemplated guilty plea constitutes deficient performance so as
to satisfy the first prong of an ineffective assistance of
counsel claim (see People v McDonald, 1 NY3d 109, 111 [2003];
People v Llibre, 125 AD3d 422, 423 [2015], lv granted 24 NY3d
1121 [2015]; People v Melo-Cordero, 123 AD3d 595, 595 [2014];
People v Diallo, 113 AD3d 199, 201 n 2 [2013]; People v Glasgow,
95 AD3d 1367, 1368 n 2 [2012], lv denied 20 NY3d 1061 [2013]).1

      In her affidavit in support of the motion, defendant
alleged that her counsel advised her that, although immigration
authorities would be notified about her guilty plea, "he did not
think anything further would happen." In fact, the crime of rape
in the third degree constitutes an "aggravated felony" that
results in mandatory deportation (see 8 USC § 1101 [a] [43] [a];
§ 1227 [a] [2] [A] [iii]; § 1229b [a] [3]; see also People v
Oouch, 97 AD3d 904, 905 [2012]). Defendant further averred that,
had counsel informed her that she was certain to be deported as a
result of her guilty plea, she would not have pleaded guilty and
would have gone to trial. As defendant sufficiently alleged that
counsel provided incorrect information concerning the deportation
consequences that would result from her guilty plea and that she
was prejudiced as a result thereof, she was entitled to a hearing


    1
        A counsel's performance is deficient under the first
prong of the test for evaluating claims of ineffective assistance
of counsel when his or her representation falls below an
objective standard of reasonableness (see Strickland v
Washington, 466 US 668, 687-688 [1984]; People v Hernandez, 22
NY3d 972, 974-975 [2013], cert denied ___ US ___, 134 S Ct 1900
[2014]; People v McDonald, 1 NY3d at 113). The second prong
requires a showing of a reasonable probability that the result of
the proceeding would have been different but for counsel's errors
(see id.).
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on this aspect of her CPL 440.10 motion (see People v Diallo, 113
AD3d at 202; People v Reynoso, 88 AD3d 1162, 1163-1164 [2011];
People v Williams, 72 AD3d 1347, 1348 [2010]; People v Marshall,
66 AD3d 1115, 1116 [2009]; see also People v Martial, 125 AD3d
689, 690 [2015]).

     McCarthy, Egan Jr. and Rose, JJ., concur.



      ORDERED that the order is reversed, on the law, and matter
remitted to the County Court of Albany County for further
proceedings not inconsistent with this Court's decision.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
