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