Padilla Victory in NY: People v. Picca

"Here, the defendant has alleged that he was born in Italy, left his country of origin when he was three years old, and has never returned. The defendant is now 50 years old, is a lawful permanent resident of the United States, and has resided in this country for over three decades. The defendant has been employed only in the United States. His entire family, including his wife, an American citizen to whom he has been married for more than 20 years, his three sons, also American citizens, his parents, and his siblings all reside in the United States. Based upon these alleged circumstances, the defendant averred that he never would have pleaded guilty had he known that removal from the United States was a mandatory consequence of that plea (cf. People vMcDonald, 1 NY3d 109, 115 [defendant failed to sufficiently allege that he was prejudiced by his counsel’s incorrect advice regarding deportation consequences where the defendant never alleged that he would not have pleaded guilty but for counsel’s error]). We conclude that the defendant’s averments sufficiently alleged that a decision to reject the plea offer, and take a chance, however slim, of being acquitted after trial, would have been rational (see United States v Orocio, 645 F3d 630, 643-646). The rationality standard set by the United States Supreme Court in Padilla does not allow the courts to substitute their judgment for that of the defendant. In applying that standard, we do not determine whether a decision to reject a plea of guilty was the best choice, but only whether it is a rational one. ... the order is reversed, on the law, and the matter is remitted to the Supreme Court, Kings County, for an evidentiary hearing on the motion in accordance herewith and a new determination on the motion thereafter." - People v. Picca, June 6, 2012.