Bt motion dated April 9, 2010, defendant's attorney moves to vacate defendant's November 20, 2009 conviction by guilty plea to Criminal Sale of Marijuana in the Second Degree on the grounds of ineffective assistance of counsel. By affirmation dated April 19, 2009, the People oppose the application.

In exchange for defendant's negotiated plea to the above crime, he was sentenced to five years probation. Defendant's attorney states that at the time of the plea he knew that defendant was not a United States citizen; however, being unversed in immigration law, he did not advise the defendant of the mandatory deportation consequences of the defendant's plea (see 8 U.S.C. §1227[a][2]). Defendant has now been detained by Immigration and Customs Enforcement and is scheduled for [*2]deportation. Defendant's attorney opines that defendant would not have pled if he had known of the mandatory deportation.

In deciding the effective assistance of counsel issue, the Court must determine whether the attorney's representation "fell below an objective standard of reasonableness" (Strickland v Washington (466 US 668, 688 [1984]); and whether "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different" (Id., at 694). The objective standard of reasonableness now includes the requirement that counsel must advise his/her client regarding the risk of deportation (see Padilla v Kentucky, ___US___, 130 S. Ct. 1473, 1482-1486 [2010]). Additionally, a defendant must also "convince the court that a decision to reject the plea bargain would have been rational under the circumstances [citation omitted]" (Id. at 1485).

Applying the two-prong Strickland/Padilla test, defendant's attorney has satisfied the first prong of the test by admitting that he failed to advise the defendant of the full penalty attached to his plea. However, the second prong of the test is not satisfied by defendant's attorney's unsupported opinion that defendant would not have accepted the negotiated plea had he known that the full penalty included deportation and that this decision would have been rational.

Accordingly, decision is reserved on the motion pending a hearing (see People v Williams, 2010 NY Slip Op 3187, ____AD3d____ [3rd Dept April 22, 2010]) on the issue of whether defendant, knew of the mandatory deportation consequences which automatically attached to his plea, whether such knowledge would have led to his rejection of the plea offer and such rejection would have been rational.

This shall constitute the Decision and Order of this Court.

DATED: June 10, 2010

Monticello, NY

_______________________________

Hon. Frank J. LaBuda

Sullivan County Court Judge