first prong test in New York

2018Although Padilla v Kentucky ( 559 US 356 ) is inapplicable to this case because the defendant's conviction became final before Padilla was decided ( see Chaidez v United States , 568 US 342 ; People v Baret , 23 NY3d 777, 782 ), even prior to Padilla , the Court of Appeals had held that "inaccurate advice about a guilty plea's immigration consequences" fell below an objective standard of reasonableness, so as to satisfy the first prong of the standard set forth in Strickland ( People v Baret , 23 NY3d at 785 ; see People v McDonald , 1 NY3d 109, 111 ; People v Roberts , 143 AD3d 843, 844-845 ;

2016Although Padilla v Kentucky ( 559 US 356 [2010]) is inapplicable to this case because the defendant’s conviction became final before Padilla was decided (see Chaidez v United States, 568 US —, 133 S Ct 1103 [2013]; People v Baret, 23 NY3d 777, 782 [2014]), even prior to Padilla , the Court of Appeals had held that “inaccurate advice about a guilty plea’s immigration consequences” fell below an objective standard of *845 reasonableness, so as to satisfy the first prong of the standard set forth in Strickland (People v Baret, 23 NY3d at 785 ; see People v McDonald, 1 NY3d 109, 111 [2003]; People

2017Defendant also satisfied the second prong of the Strickland test by adequately showing that there is a reasonable probability that, but for his attorney's misadvice, he would not have pleaded guilty and would have insisted on going to trial ( see Hill v Lockhart , 474 US 52, 59 [1985]; People v Hernandez , 22 NY3d 972 , 974-975 [2013]).

2014“The second prong ‘focuses on whether counsel’s constitutionally ineffective performance affected the outcome of the plea process’ ” (People v Picca, 97 AD3d at 177, quoting Hill v Lockhart, 474 US 52, 59 [1985]; see People v McDonald, 1 NY3d at 114 ).

2017The first prong of this analysis “requires the court to compare the statutes in the abstract, without reference to any factual particularities of the underlying prosecution” (People v Repanti, 24 NY3d 706, 710 [2015]; see People v Davis, 14 NY3d 20, 23 [2009]; People v Glover, 57 NY2d at 64 ).

2017The first prong of this analysis "requires the court to compare the statutes in the abstract, without reference to any factual particularities of the underlying prosecution" ( People v Repanti , 24 NY3d 706, 710 [2015]; see People v Davis , 14 NY3d 20, 23 [2009]; People v Glover , 57 NY2d at 64 ).

2015Ordered that the order is reversed, on the law, and matter remitted to the County Court of Albany County for further proceedings not inconsistent with this Court’s decision. * A counsel’s performance is deficient under the first prong of the test for evaluating claims of ineffective assistance of counsel when his or her representation falls below an objective standard of reasonableness (see Strickland v Washington, 466 US 668, 687-688 [1984]; People v Hernandez, 22 NY3d 972, 974-975 [2013], cert denied 572 US —, 134 S Ct 1900 [2014]; People v McDonald, 1 NY3d at 113 ).

2012Under the first prong of that standard, the “defendant must show that counsel’s representation fell below an objective standard of reasonableness” (Strickland v Washington, 466 US at 688 ; see People v McDonald, 1 NY3d at 113 ).

2021If defense counsel fails to do so, "then counsel's representation would fall below an objective standard of reasonableness and thereby satisfy the first prong of the test [set forth in Padilla ] for determining whether [a] defendant was deprived of his [or her] constitutional right to the effective assistance of counsel" ( People v Oouch , 97 AD3d 904, 905 [2012]; see People v Carty , 96 AD3d at 1093-1094 ).

2012If defense counsel was aware of defendant’s immigration status and failed to inform him that he was pleading guilty to a deportable offense, then counsel’s representation would fall below an objective standard of reasonableness and thereby satisfy the first prong of the test for determining whether defendant was deprived of his constitutional right to the effective assistance of counsel (see Padilla v Kentucky, 559 US —, —, 130 S Ct 1473, 1482-1484 [2010]; Strickland v Washington, 466 US 668, 688 [1984]; People v Carty, 96 AD3d 1093, 1093-1094 [2012]).

2016An individual has standing where he or she “would suffer direct harm, injury that is in some way different from that of the public at large” {id. at 774) and “the in-fact injury of which [he or she] complains . . . falls within the ‘zone of interests,’ or concerns, sought to be promoted or protected by the statutory provision under which the agency has acted” {id. *926 at 773, quoting Lujan v National Wildlife Federation, 497 US 871, 883 [1990]; see Roulan v County of Onondaga, 21 NY3d 902, 905 [2013]).

2014An individual has standing where he or she “would suffer direct harm, injury that is in some way different from that of the public at large” (id. at 774) and “the in-fact injury of which [he or she] complains . . . falls within the ‘zone of interests,’ or concerns, sought to be promoted or protected by the statutory provision under which the agency has acted” (id. at 773, quoting Lujan v National Wildlife Federation, 491 US 871,883 [1990]; see Roulan v County of Onondaga, 21 NY3d 902 [2013]).

2013Defendant’s contention regarding the first prong of the test is not at issue because where, as here, the prosecution “has placed its race-neutral reasons [for exercising a challenge] on the record . . . , the sufficiency of the prima facie showing becomes ‘moot’ ” (People v Hecker, 15 NY3d 625, 652 [2010]; see People v Payne, 88 NY2d 172, 182 [1996]).

2013Defendant’s contention regarding the first prong of the test is not at issue because where, as here, the prosecution “has placed its race-neutral reasons [for exercising a challenge] on the record . . . , the sufficiency of the prima facie showing becomes ‘moot’ ” (People v Hecker, 15 NY3d 625, 652 [2010]; see People v Payne, 88 NY2d 172, 182 [1996]).

2013Furthermore, we conclude that the prosecutor “met [her] burden under step two of the analysis and that the court properly ‘denied [defendant’s Batson] challenge, thereby implicitly determining that [the prosecutor’s] reasons [for exercising the peremptory challenge] were not pretextual’ under step three” (People v Scott, 31 AD3d 1165,1165 [2006], lv denied 7 NY3d 851 [2006]; see Robinson, 1 AD3d at 986 ).

2013Furthermore, we conclude that the prosecutor “met [her] burden under step two of the analysis and that the court properly ‘denied [defendant’s Batson] challenge, thereby implicitly determining that [the prosecutor’s] reasons [for exercising the peremptory challenge] were not pretextual’ under step three” (People v Scott, 31 AD3d 1165,1165 [2006], lv denied 7 NY3d 851 [2006]; see Robinson, 1 AD3d at 986 ).

2018Although Padilla v Kentucky ( 559 US 356 ) is inapplicable to this case because the defendant's conviction became final before Padilla was decided ( see Chaidez v United States , 568 US 342 ; People v Baret , 23 NY3d 777, 782 ), even prior to Padilla , the Court of Appeals had held that "inaccurate advice about a guilty plea's immigration consequences" fell below an objective standard of reasonableness, so as to satisfy the first prong of the standard set forth in Strickland ( People v Baret , 23 NY3d at 785 ; see People v McDonald , 1 NY3d 109, 111 ; People v Roberts , 143 AD3d 843, 844-845 ;

2017Consequently, defendant satisfied the first prong of the test set forth in Strickland v Washington ( 466 US 669 , 687 [1984]) for determining a claim of ineffective assistance of counsel, by showing that his attorney's performance fell below an objective standard of reasonableness under prevailing professional norms ( see Padilla v Kentucky , 559 US 356 ; People v Turner , 5 NY3d 476 [2005]; People v Benevento , 91 NY2d 708, 713 [1998]).

2016In order to satisfy the first prong of that test, the petitioner must demonstrate that the action will cause it “direct harm, injury that is in some way different from that of the public at large” (Society of Plastics Indus. v County of Suffolk, 77 NY2d 761, 774 [1991]; see Matter of Sun-Brite Car Wash v Board of Zoning & Appeals of Town of N. Hempstead, 69 NY2d at 415-416 ).

2015As to the first prong of this test, an individual has standing where he or she “would suffer direct harm, injury that is in some way different from that of the public at large” (Society of Plastics Indus., 77 NY2d at 774 ) and “the in-fact injury of which [he or she] complains . . . falls within the ‘zone of interests,’ or concerns, sought to be promoted or protected by the statutory provision under which the agency has acted” (id. at 773, quoting Lujan v National Wildlife Federation, 497 US 871, 883 [1990]).

2013Furthermore, we conclude that the prosecutor “met [her] burden under step two of the analysis and that the court properly ‘denied [defendant’s Batson] challenge, thereby implicitly determining that [the prosecutor’s] reasons [for exercising the peremptory challenge] were not pretextual’ under step three” (People v Scott, 31 AD3d 1165,1165 [2006], lv denied 7 NY3d 851 [2006]; see Robinson, 1 AD3d at 986 ).

2013Furthermore, we conclude that the prosecutor “met [her] burden under step two of the analysis and that the court properly ‘denied [defendant’s Batson] challenge, thereby implicitly determining that [the prosecutor’s] reasons [for exercising the peremptory challenge] were not pretextual’ under step three” (People v Scott, 31 AD3d 1165,1165 [2006], lv denied 7 NY3d 851 [2006]; see Robinson, 1 AD3d at 986 ).

2013Assuming, arguendo, that plaintiffs evidence that the wages of two other employees exceeded hers by two dollars per hour was sufficient to meet the first prong of that standard, we conclude that the evidence in the record establishes that those employees were more experienced than plaintiff when they were hired, and thus she failed to meet the third prong (see Kent v Papert Cos., 309 AD2d 234, 244-245 [2003]; cf. Matter of Classic Coach v Mercado, 280 AD2d 164, 170 [2001], lv denied 97 NY2d 601 [2001]).

2013Assuming, arguendo, that plaintiffs evidence that the wages of two other employees exceeded hers by two dollars per hour was sufficient to meet the first prong of that standard, we conclude that the evidence in the record establishes that those employees were more experienced than plaintiff when they were hired, and thus she failed to meet the third prong (see Kent v Papert Cos., 309 AD2d 234, 244-245 [2003]; cf. Matter of Classic Coach v Mercado, 280 AD2d 164, 170 [2001], lv denied 97 NY2d 601 [2001]).

2013Defendant’s contention regarding the first prong of the test is not at issue because where, as here, the prosecution “has placed its race-neutral reasons [for exercising a challenge] on the record . . . , the sufficiency of the prima facie showing becomes ‘moot’ ” (People v Hecker, 15 NY3d 625, 652 [2010]; see People v Payne, 88 NY2d 172, 182 [1996]).

2013Defendant’s contention regarding the first prong of the test is not at issue because where, as here, the prosecution “has placed its race-neutral reasons [for exercising a challenge] on the record . . . , the sufficiency of the prima facie showing becomes ‘moot’ ” (People v Hecker, 15 NY3d 625, 652 [2010]; see People v Payne, 88 NY2d 172, 182 [1996]).

2013Assuming, arguendo, that plaintiffs evidence that the wages of two other employees exceeded hers by two dollars per hour was sufficient to meet the first prong of that standard, we conclude that the evidence in the record establishes that those employees were more experienced than plaintiff when they were hired, and thus she failed to meet the third prong (see Kent v Papert Cos., 309 AD2d 234, 244-245 [2003]; cf. Matter of Classic Coach v Mercado, 280 AD2d 164, 170 [2001], lv denied 97 NY2d 601 [2001]).

2013Assuming, arguendo, that plaintiffs evidence that the wages of two other employees exceeded hers by two dollars per hour was sufficient to meet the first prong of that standard, we conclude that the evidence in the record establishes that those employees were more experienced than plaintiff when they were hired, and thus she failed to meet the third prong (see Kent v Papert Cos., 309 AD2d 234, 244-245 [2003]; cf. Matter of Classic Coach v Mercado, 280 AD2d 164, 170 [2001], lv denied 97 NY2d 601 [2001]).

2024"To satisfy the second prong [of the specific jurisdiction analysis], the statute requires an 'articulable nexus' or 'substantial relationship' between the cause of action sued upon, or an element thereof, and the defendants' business transactions in New York" ( Aybar v US Tires & Wheels of Queens, LLC , 211 AD3d 40, 48 [2d Dept 2022] [internal quotation marks omitted]; see D&R Global Selections, S.L. v Bodega Olegario Falcon Pineiro , 29 NY3d 292, 298 [2017]).

2024"To satisfy the second prong [of the specific jurisdiction analysis], the statute requires an 'articulable nexus' or 'substantial relationship' between the cause of action sued upon, or an element thereof, and the defendants' business transactions in New York" ( Aybar v US Tires & Wheels of Queens, LLC , 211 AD3d 40, 48 [2d Dept 2022] [internal quotation marks omitted]; see D&R Global Selections, S.L. v Bodega Olegario Falcon Pineiro , 29 NY3d 292, 298 [2017]).

2024"To satisfy the second prong [of the specific jurisdiction analysis], the statute requires an 'articulable nexus' or 'substantial relationship' between the cause of action sued upon, or an element thereof, and the defendants' business transactions in New York" ( Aybar v US Tires & Wheels of Queens, LLC , 211 AD3d 40, 48 [2d Dept 2022] [internal quotation marks omitted]; see D&R Global Selections, S.L. v Bodega Olegario Falcon Pineiro , 29 NY3d 292, 298 [2017]).

2024"To satisfy the second prong [of the specific jurisdiction analysis], the statute requires an 'articulable nexus' or 'substantial relationship' between the cause of action sued upon, or an element thereof, and the defendants' business transactions in New York" ( Aybar v US Tires & Wheels of Queens, LLC , 211 AD3d 40, 48 [2d Dept 2022] [internal quotation marks omitted]; see D&R Global Selections, S.L. v Bodega Olegario Falcon Pineiro , 29 NY3d 292, 298 [2017]).

2022As a result of such a failure, "counsel's representation would fall below an objective standard of reasonableness and thereby satisfy the first prong of the test set forth in Padilla for determining whether a defendant was deprived of his or her constitutional right to the effective assistance of counsel" ( People v Marte-Feliz , 192 AD3d 1397, 1398 [2021] [internal quotation marks, brackets and citations omitted]; see People v Oouch , 97 AD3d 904, 905 [2012]).

2021If defense counsel fails to do so, "then counsel's representation would fall below an objective standard of reasonableness and thereby satisfy the first prong of the test [set forth in Padilla ] for determining whether [a] defendant was deprived of his [or her] constitutional right to the effective assistance of counsel" ( People v Oouch , 97 AD3d 904, 905 [2012]; see People v Carty , 96 AD3d at 1093-1094 ).

2017Assuming without deciding that the second was as well, the third was not in that plaintiff’s failure to timely commence an action against defendant “was not the result of a mistake or an inability to identify the correct defendant within the applicable limitations period” (Contos v Mahoney, 36 AD3d 646, 647 [2007]).

2017Assuming without deciding that the second was as well, the third was not in that plaintiff’s failure to timely commence an action against defendant “was not the result of a mistake or an inability to identify the correct defendant within the applicable limitations period” (Contos v Mahoney, 36 AD3d 646, 647 [2007]).

2017In contrast, the second prong “calls for an assessment of the evidence of the particular criminal transaction in the individual case” (People v Glover, 57 NY2d at 64 ) and requires that there be “ ‘some identifiable, rational basis on which the jury could reject a portion of the prosecution’s case which is indispensable to establishment of the higher crime *862 and yet accept so much of the proof as would establish the lesser crime’ ” (People v Rivera, 23 NY3d 112, 121 [2014], quoting People v Scarborough, 49 NY2d 364, 369-370 [1980]; accord People v Acevedo, 141 AD3d 843, 845 [2016]).

2017In contrast, the second prong "calls for an assessment of the evidence of the particular criminal transaction in the individual case" ( People v Glover , 57 NY2d at 64 ) and requires that there be "'some identifiable, rational basis on which the jury could reject a portion of the prosecution's case which is indispensable to establishment of the higher crime and yet accept so much of the proof as would establish the lesser crime'" ( People v Rivera , 23 NY3d 112, 121 [2014], quoting People v Scarborough , 49 NY2d 364, 369-370 [1980]; accord People v Acevedo , 141 AD3d 843, 845 [2016]).

2007Unlike New York State Assn. of Nurse Anesthetists v Novello ( 2 NY3d 207 [2004]), where the issue of standing was fully briefed and argued on appeal and the record led the Court of Appeals to conclude that plaintiff failed to demonstrate an in-fact injury sufficient to meet the first prong of the test for standing, there is no basis in the record before us for such a conclusion in this case.

2006Inasmuch as any alleged injury to petitioner resulted from the independent actions of third parties, he fails to demonstrate that he was “actually . . . harmed by the challenged administrative action” and, thus, he cannot meet the first prong of the test for standing (New York State Assn. of Nurse Anesthetists v Novello, supra at 211).

2018Although Padilla v Kentucky ( 559 US 356 ) is inapplicable to this case because the defendant's conviction became final before Padilla was decided ( see Chaidez v United States , 568 US 342 ; People v Baret , 23 NY3d 777, 782 ), even prior to Padilla , the Court of Appeals had held that "inaccurate advice about a guilty plea's immigration consequences" fell below an objective standard of reasonableness, so as to satisfy the first prong of the standard set forth in Strickland ( People v Baret , 23 NY3d at 785 ; see People v McDonald , 1 NY3d 109, 111 ; People v Roberts , 143 AD3d 843, 844-845 ;

2016Although Padilla v Kentucky ( 559 US 356 [2010]) is inapplicable to this case because the defendant’s conviction became final before Padilla was decided (see Chaidez v United States, 568 US —, 133 S Ct 1103 [2013]; People v Baret, 23 NY3d 777, 782 [2014]), even prior to Padilla , the Court of Appeals had held that “inaccurate advice about a guilty plea’s immigration consequences” fell below an objective standard of *845 reasonableness, so as to satisfy the first prong of the standard set forth in Strickland (People v Baret, 23 NY3d at 785 ; see People v McDonald, 1 NY3d 109, 111 [2003]; People

2018Although Padilla v Kentucky ( 559 US 356 ) is inapplicable to this case because the defendant's conviction became final before Padilla was decided ( see Chaidez v United States , 568 US 342 ; People v Baret , 23 NY3d 777, 782 ), even prior to Padilla , the Court of Appeals had held that "inaccurate advice about a guilty plea's immigration consequences" fell below an objective standard of reasonableness, so as to satisfy the first prong of the standard set forth in Strickland ( People v Baret , 23 NY3d at 785 ; see People v McDonald , 1 NY3d 109, 111 ; People v Roberts , 143 AD3d 843, 844-845 ;

2018Although Padilla v Kentucky ( 559 US 356 ) is inapplicable to this case because the defendant's conviction became final before Padilla was decided ( see Chaidez v United States , 568 US 342 ; People v Baret , 23 NY3d 777, 782 ), even prior to Padilla , the Court of Appeals had held that "inaccurate advice about a guilty plea's immigration consequences" fell below an objective standard of reasonableness, so as to satisfy the first prong of the standard set forth in Strickland ( People v Baret , 23 NY3d at 785 ; see People v McDonald , 1 NY3d 109, 111 ; People v Roberts , 143 AD3d 843, 844-845 ;