Opinion
No. 2011–1510 OR CR.
2012-06-13
The PEOPLE of the State of New York, Appellant, v. Jeff ROSELIEN, Respondent.
Present: NICOLAI, P.J., LaCAVA and IANNACCI, JJ.
Appeal from an order of the Justice Court of the Town of Woodbury, Orange County (David L. Levinson, J.), dated April 13, 2011. The order granted defendant's motion to vacate a judgment convicting him, upon his plea of guilty, of petit larceny.
ORDERED that the order is reversed, on the law, and the matter is remitted to the Justice Court for a determination de novo, following a hearing, of defendant's motion to vacate the judgment of conviction.
In 2009, a judgment was entered convicting defendant, upon his plea of guilty, of petit larceny (Penal Law § 155.25). In 2011, defendant moved, pursuant to CPL 440.10, to vacate the judgment of conviction on the ground that he had received the ineffective assistance of counsel because his attorney had failed to advise him regarding the immigration consequences of his guilty plea. By order dated April 13, 2011, the Justice Court, without holding a hearing, granted defendant's motion. This appeal by the People ensued.
In People v. Nunez (30 Misc.3d 55 [App Term, 9th & 10th Jud Dists 2010] ), this court ruled that the holding of Padilla v. Kentucky (559 US, 130 S Ct 1473 [2010] )—that a defense counsel must inform his client, at the very least, that immigration consequences may result from his guilty plea—applies retroactively. A review of the record indicates that defendant's affidavits in support of his CPL 440.10 motion to vacate the judgment of conviction demonstrate the existence of an issue of fact as to whether his attorney failed to advise him regarding the immigration consequences of his pending guilty plea. Consequently, a proper determination of the motion called for the making of factual findings, which required a hearing ( seeCPL 440.30[5] ).
Accordingly, the order is reversed and the matter is remitted to the Justice Court for a determination de novo, following a hearing, of defendant's motion to vacate the judgment of conviction.