NEW YORK, June 6 (Reuters) - A New York appeals court has
granted a new hearing to an Italian man who wants to withdraw a
guilty plea after learning that he may be deported as a result
of the conviction.
The Appellate Division, Second Department, ruled on
Wednesday that defendant Claudio Picca had sufficiently alleged
that he had a "rational" reason for seeking to withdraw the plea
-- namely, that his attorney never told him that he could face
deportation if he was convicted of a felony.
The ruling overturns a decision from Kings County Supreme
Court denying Picca's request to withdraw his 2001 plea to
attempted criminal sale of a controlled substance. He was
sentenced to 3 to 6 years in prison.
Picca, 50, was born in Italy and immigrated to the United
States when he was 3 years old. Despite the reduced prison
sentence he received as a result of the deal, Picca, a U.S.
legal permanent resident, said he would not have pled guilty if
he had known that felony convictions could lead to the loss of
his immigration status.
The Brooklyn district attorney's office, which handled the
prosecution, did not deny that Picca was never informed about
the immigration consequence of his plea. But it was Picca's
responsibility to tell his attorney that he was a non-citizen,
which he failed to do, the DA's office argued.
Picca appealed in 2010, after the U.S. Supreme Court's
ruling in Padilla v. Kentucky. He argued that, under the
precedent set by Padilla, his Sixth Amendment right to effective
assistance of counsel had been violated by his attorney's
failure to tell him about the immigration consequences of his
In a unanimous opinion authored by Associate Justice Peter
Skelos, the Second Department applied the two-prong test adopted
in Padilla to determine whether Picca's Sixth Amendment right
had been violated.
The first prong -- whether the attorney's negligence
deprived the defendant of reasonable representation -- had been
met, the Second Department held. The second prong was whether
the court was convinced that the decision to reject the plea
bargain would be "rational under the circumstances," under
"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," Skelos wrote for the court. "The rationality
standard set by the U.S. Supreme Court in Padilla does not allow
the courts to substitute their judgment for that of the
"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."
Skelos was joined by associate justices Thomas Dickerson,
Randall Eng and Sandra Sgroi in the opinion.
A respresentative of the Brooklyn district attorney's office
said it was reviewing the situation. An attorney for Picca was
not immediately available for comment.
The case is People v. Picca, in the Supreme Court of the
State of New York, Appellate Division: Second Department, No.
For the DA: Leonard Joblove and Shulamit Nemec.
For Picca: Lynn Fahey.
(Reporting by Jessica Dye)
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