Providing Incorrect Information by Attorney About Deportation Consequences of a Plea in New York
In People v. McDonald, 1 NY3d 109, 802 N.E.2d 131, 769 N.Y.S.2d 781 (2003), the Court of Appeals addressed the issue of whether a defendant whose counsel had ineffectively represented him by providing incorrect information about the deportation consequences of his plea had been prejudiced by his entry of a guilty plea.
The Court held that in order to sustain a claim of prejudice that would entitle a defendant to withdraw his plea, the defendant must set forth "factual allegations that, but for counsel's error, he would not have pleaded guilty."
The Court would then evaluate such allegations "with reference to the face of the pleadings, the context of the motions and defendant's access to information" in order to determine whether "there is a reasonable probability that but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial."
Since no such factual allegations were adduced, the Court affirmed the Appellate Division's decision denying defendant's motion to vacate the judgment against him.
As the Court held:
"The sufficiency of defendant's factual allegations as to prejudice should be evaluated with reference to the face of the pleadings, the context of the motion and defendant's access to information (see People v. Mendoza, 82 NY2d 415, 426, 624 N.E.2d 1017, 604 N.Y.S.2d 922 1993). Here, the supporting affirmation annexed to defendant's motion to vacate the judgment of conviction was made by trial counsel (see CPL 440.30 1). It merely states that counsel misinformed defendant as to the deportation consequences of his guilty plea and that defendant relied on the incorrect advice when entering the plea. The affirmation make no factual allegation that, but for counsel's error, defendant would not have pleaded guilty.
Given that this is not an instance where defendant's lack of access to information precluded more specific factual allegations, defendant was required to allege necessary facts to support his motion to vacate the judgment of conviction (see Mendoza, 82 NY2d at 429). Because he failed to make a prima facie showing of prejudice, the Appellate Division did not err in denying his motion to vacate the judgment of conviction without a hearing." (Id. at 115)