Strickland test in New York

2026"To establish ineffective assistance of counsel under the federal standard, a defendant is required to demonstrate that counsel['s] performance fell below an objective standard of reasonableness and that the deficient performance prejudiced the defense" ( People v Montgomery , 235 AD3d 1004 , 1005; see Strickland v Washington , 466 US 668, 693 ; People v Nicholson , 26 NY3d 813, 830 ). "'The first prong of the Strickland test is essentially a restatement of attorney competence, which requires a showing that counsel's representation fell below an objective standard of reasonableness'" ( People

2026"To establish ineffective assistance of counsel under the federal standard, a defendant is required to demonstrate that counsel['s] performance fell below an objective standard of reasonableness and that the deficient performance prejudiced the defense" ( People v Montgomery , 235 AD3d 1004 , 1005; see Strickland v Washington , 466 US 668, 693 ; People v Nicholson , 26 NY3d 813, 830 ). "'The first prong of the Strickland test is essentially a restatement of attorney competence, which requires a showing that counsel's representation fell below an objective standard of reasonableness'" ( People

2018The first prong of the Strickland test requires a showing that counsel's representation fell below an objective standard of reasonableness ( see Strickland , 466 US at 687-688 ).The second prong, also known as the prejudice prong, "focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process" ( Hill v Lockhart , 474 US 52, 59 [1985]).

2018The first prong of the Strickland test requires a showing that counsel's representation fell below an objective standard of reasonableness ( see Strickland , 466 US at 687-688 ).The second prong, also known as the prejudice prong, "focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process" ( Hill v Lockhart , 474 US 52, 59 [1985]).

2020The United States Supreme Court has held that the Sixth Amendment’s definition of effective assistance of counsel “relies . . . on the legal profession’s maintenance of standards sufficient to justify the law’s presumption that counsel will fulfill the role in the adversary process that the Amendment envisions” (Strickland, 466 US at 688 , citing Michel v Louisiana, 350 US 91, 100-101 [1955]; see also Padilla v Kentucky, 559 US 356, 366 [2010] [“The first prong (of the Strickland test)—constitutional deficiency—is necessarily linked to the practice and expectations of the legal community”]).

2020The United States Supreme Court has held that the Sixth Amendment’s definition of effective assistance of counsel “relies . . . on the legal profession’s maintenance of standards sufficient to justify the law’s presumption that counsel will fulfill the role in the adversary process that the Amendment envisions” (Strickland, 466 US at 688 , citing Michel v Louisiana, 350 US 91, 100-101 [1955]; see also Padilla v Kentucky, 559 US 356, 366 [2010] [“The first prong (of the Strickland test)—constitutional deficiency—is necessarily linked to the practice and expectations of the legal community”]).

2026"To establish ineffective assistance of counsel under the federal standard, a defendant is required to demonstrate that counsel['s] performance fell below an objective standard of reasonableness and that the deficient performance prejudiced the defense" ( People v Montgomery , 235 AD3d 1004 , 1005; see Strickland v Washington , 466 US 668, 693 ; People v Nicholson , 26 NY3d 813, 830 ). "'The first prong of the Strickland test is essentially a restatement of attorney competence, which requires a showing that counsel's representation fell below an objective standard of reasonableness'" ( People

2026"To establish ineffective assistance of counsel under the federal standard, a defendant is required to demonstrate that counsel['s] performance fell below an objective standard of reasonableness and that the deficient performance prejudiced the defense" ( People v Montgomery , 235 AD3d 1004 , 1005; see Strickland v Washington , 466 US 668, 693 ; People v Nicholson , 26 NY3d 813, 830 ). "'The first prong of the Strickland test is essentially a restatement of attorney competence, which requires a showing that counsel's representation fell below an objective standard of reasonableness'" ( People

2018The second prong of the Strickland test, also known as the prejudice prong, requires that a defendant "affirmatively prove prejudice," which means that even if a defendant establishes that his attorney's representation fell below an objective standard of reasonableness, the conviction will not be set aside if the error or errors had no effect on the judgment ( see Hill v Lockhart , 474 US 52, 59 [1985]; Strickland v Washington , 466 US at 692-693; People v Hernandez , 22 NY3d 972, 974-975 [2013]).

2018The second prong of the Strickland test, also known as the prejudice prong, requires that a defendant "affirmatively prove prejudice," which means that even if a defendant establishes that his attorney's representation fell below an objective standard of reasonableness, the conviction will not be set aside if the error or errors had no effect on the judgment ( see Hill v Lockhart , 474 US 52, 59 [1985]; Strickland v Washington , 466 US at 692-693; People v Hernandez , 22 NY3d 972, 974-975 [2013]).

2014“With respect to the first prong of the Strickland standard, prior to the United States Supreme Court’s decision in Padilla , it was the law of this State that defense counsel was not under a duty to advise defendants of the removal consequences of a plea of guilty because such consequences were deemed to be collateral to the sentence” (People v Picca, 97 AD3d at 177 [internal quotation marks omitted]; see People v McDonald, 1 NY3d at 114 ; People v Ford, 86 NY2d 397, 403 [1995]; see also People v Vargas, 112 AD3d 979 [2013]).

2014“With respect to the first prong of the Strickland standard, prior to the United States Supreme Court’s decision in Padilla , it was the law of this State that defense counsel was not under a duty to advise defendants of the removal consequences of a plea of guilty because such consequences were deemed to be collateral to the sentence” (People v Picca, 97 AD3d at 177 [internal quotation marks omitted]; see People v McDonald, 1 NY3d at 114 ; People v Ford, 86 NY2d 397, 403 [1995]; see also People v Vargas, 112 AD3d 979 [2013]).

2017Consequently, defendant met the first prong of the Strickland test by establishing that his attorney’s representation fell below an objective standard of reasonableness since he admitted that he had failed to advise defendant as to whether the plea carried a risk of deportation (see Padilla, 559 US 356 ; Picca, 97 AD3d at 179-180).

2017Consequently, defendant met the first prong of the Strickland test by establishing that his attorney’s representation fell below an objective standard of reasonableness since he admitted that he had failed to advise defendant as to whether the plea carried a risk of deportation (see Padilla, 559 US 356 ; Picca, 97 AD3d at 179-180).

2014The majority essentially concedes a Strickland violation and that Rosario would be entitled to relief if this case arose on direct review but denies the writ out of deference to the state court” (Rosario, 601 F3d at 129, 137 [Straub, J., dissenting]).

2014The majority essentially concedes a Strickland violation and that Rosario would be entitled to relief if this case arose on direct review but denies the writ out of deference to the state court” (Rosario, 601 F3d at 129, 137 [Straub, J., dissenting]).

2018In addition to demonstrating that defense counsel's performance was deficient, a defendant making a federal constitutional claim must also show, in order to satisfy the second prong of the Strickland standard, that there was " a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial'" ( People v McDonald , 1 NY3d at 114 , quoting Hill v Lockhart , 474 US 52, 59 ; see People v Hernandez , 22 NY3d 972, 976 ; People v Roberts , 143 AD3d at 845 ; People v Pinto , 133 AD3d at 792 ).

2018In addition to demonstrating that defense counsel's performance was deficient, a defendant making a federal constitutional claim must also show, in order to satisfy the second prong of the Strickland standard, that there was " a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial'" ( People v McDonald , 1 NY3d at 114 , quoting Hill v Lockhart , 474 US 52, 59 ; see People v Hernandez , 22 NY3d 972, 976 ; People v Roberts , 143 AD3d at 845 ; People v Pinto , 133 AD3d at 792 ).

2018With respect to the second prong of the Strickland test, defendant's affidavit demonstrated that "there is a reasonable probability that, but for counsel's [misadvice, defendant] would not have pleaded guilty and would have insisted on going to trial" ( Hill v Lockhart , 474 US at 59; see also Lee v United States , __ US__, 137 S Ct 1958, 1964 [2017]; Strickland v Washington , 466 US at 694; People v Hernandez , 22 NY3d at 974-975).

2018With respect to the second prong of the Strickland test, defendant's affidavit demonstrated that "there is a reasonable probability that, but for counsel's [misadvice, defendant] would not have pleaded guilty and would have insisted on going to trial" ( Hill v Lockhart , 474 US at 59; see also Lee v United States , __ US__, 137 S Ct 1958, 1964 [2017]; Strickland v Washington , 466 US at 694; People v Hernandez , 22 NY3d at 974-975).

2000At the outset we note that the courts of this State have not adopted the Strickland test for determining ineffective assistance of counsel claims but continue to apply a flexible standard to analyze claims based upon a deprivation of the right to effective assistance of counsel guaranteed under the New York Constitution (see, People v Benevento, supra, at 715; People v Vilardi, 76 NY2d 67, 74 ; People v Rivera, 71 NY2d 705 ; People v Benn, 68 NY2d 941 ; People v Baldi, 54 NY2d 137 , supra).

2000At the outset we note that the courts of this State have not adopted the Strickland test for determining ineffective assistance of counsel claims but continue to apply a flexible standard to analyze claims based upon a deprivation of the right to effective assistance of counsel guaranteed under the New York Constitution (see, People v Benevento, supra, at 715; People v Vilardi, 76 NY2d 67, 74 ; People v Rivera, 71 NY2d 705 ; People v Benn, 68 NY2d 941 ; People v Baldi, 54 NY2d 137 , supra).

2014“With respect to the first prong of the Strickland standard, prior to the United States Supreme Court’s decision in Padilla , it was the law of this State that defense counsel was not under a duty to advise defendants of the removal consequences of a plea of guilty because such consequences were deemed to be collateral to the sentence” (People v Picca, 97 AD3d at 177 [internal quotation marks omitted]; see People v McDonald, 1 NY3d at 114 ; People v Ford, 86 NY2d 397, 403 [1995]; see also People v Vargas, 112 AD3d 979 [2013]).

2014“With respect to the first prong of the Strickland standard, prior to the United States Supreme Court’s decision in Padilla , it was the law of this State that defense counsel was not under a duty to advise defendants of the removal consequences of a plea of guilty because such consequences were deemed to be collateral to the sentence” (People v Picca, 97 AD3d at 177 [internal quotation marks omitted]; see People v McDonald, 1 NY3d at 114 ; People v Ford, 86 NY2d 397, 403 [1995]; see also People v Vargas, 112 AD3d 979 [2013]).

2012While Padilla , itself involving a motion for post-conviction relief, suggested it would apply to collateral challenges to final convictions but did not decide the issue (see 559 US at —, 130 S Ct at 1484-1486 ), the Federal Circuit Courts of Appeal are divided (compare United States v Chang Hong, 671 F3d 1147, 1158 [10th Cir 2011] [Padilla is not retroactive], and Chaidez v United States, 655 F3d 684, 686 [7th Cir 2011], cert granted 566 US —, 2012 WL 1468539 , 2012 US LEXIS 3335 [2012] [same], with United States v Orocio, 645 F3d 630, 633 [3d Cir 2011] [Padilla is retroactive]; see also Hill

2012While Padilla , itself involving a motion for post-conviction relief, suggested it would apply to collateral challenges to final convictions but did not decide the issue (see 559 US at —, 130 S Ct at 1484-1486 ), the Federal Circuit Courts of Appeal are divided (compare United States v Chang Hong, 671 F3d 1147, 1158 [10th Cir 2011] [Padilla is not retroactive], and Chaidez v United States, 655 F3d 684, 686 [7th Cir 2011], cert granted 566 US —, 2012 WL 1468539 , 2012 US LEXIS 3335 [2012] [same], with United States v Orocio, 645 F3d 630, 633 [3d Cir 2011] [Padilla is retroactive]; see also Hill

2012While Padilla , itself involving a motion for post-conviction relief, suggested it would apply to collateral challenges to final convictions but did not decide the issue (see 559 US at —, 130 S Ct at 1484-1486 ), the Federal Circuit Courts of Appeal are divided (compare United States v Chang Hong, 671 F3d 1147, 1158 [10th Cir 2011] [Padilla is not retroactive], and Chaidez v United States, 655 F3d 684, 686 [7th Cir 2011], cert granted 566 US —, 2012 WL 1468539 , 2012 US LEXIS 3335 [2012] [same], with United States v Orocio, 645 F3d 630, 633 [3d Cir 2011] [Padilla is retroactive]; see also Hill

2012While Padilla , itself involving a motion for post-conviction relief, suggested it would apply to collateral challenges to final convictions but did not decide the issue (see 559 US at —, 130 S Ct at 1484-1486 ), the Federal Circuit Courts of Appeal are divided (compare United States v Chang Hong, 671 F3d 1147, 1158 [10th Cir 2011] [Padilla is not retroactive], and Chaidez v United States, 655 F3d 684, 686 [7th Cir 2011], cert granted 566 US —, 2012 WL 1468539 , 2012 US LEXIS 3335 [2012] [same], with United States v Orocio, 645 F3d 630, 633 [3d Cir 2011] [Padilla is retroactive]; see also Hill

2012While Padilla , itself involving a motion for post-conviction relief, suggested it would apply to collateral challenges to final convictions but did not decide the issue (see 559 US at —, 130 S Ct at 1484-1486 ), the Federal Circuit Courts of Appeal are divided (compare United States v Chang Hong, 671 F3d 1147, 1158 [10th Cir 2011] [Padilla is not retroactive], and Chaidez v United States, 655 F3d 684, 686 [7th Cir 2011], cert granted 566 US —, 2012 WL 1468539 , 2012 US LEXIS 3335 [2012] [same], with United States v Orocio, 645 F3d 630, 633 [3d Cir 2011] [Padilla is retroactive]; see also Hill

2012While Padilla , itself involving a motion for post-conviction relief, suggested it would apply to collateral challenges to final convictions but did not decide the issue (see 559 US at —, 130 S Ct at 1484-1486 ), the Federal Circuit Courts of Appeal are divided (compare United States v Chang Hong, 671 F3d 1147, 1158 [10th Cir 2011] [Padilla is not retroactive], and Chaidez v United States, 655 F3d 684, 686 [7th Cir 2011], cert granted 566 US —, 2012 WL 1468539 , 2012 US LEXIS 3335 [2012] [same], with United States v Orocio, 645 F3d 630, 633 [3d Cir 2011] [Padilla is retroactive]; see also Hill

2012While Padilla , itself involving a motion for post-conviction relief, suggested it would apply to collateral challenges to final convictions but did not decide the issue (see 559 US at —, 130 S Ct at 1484-1486 ), the Federal Circuit Courts of Appeal are divided (compare United States v Chang Hong, 671 F3d 1147, 1158 [10th Cir 2011] [Padilla is not retroactive], and Chaidez v United States, 655 F3d 684, 686 [7th Cir 2011], cert granted 566 US —, 2012 WL 1468539 , 2012 US LEXIS 3335 [2012] [same], with United States v Orocio, 645 F3d 630, 633 [3d Cir 2011] [Padilla is retroactive]; see also Hill

2012While Padilla , itself involving a motion for post-conviction relief, suggested it would apply to collateral challenges to final convictions but did not decide the issue (see 559 US at —, 130 S Ct at 1484-1486 ), the Federal Circuit Courts of Appeal are divided (compare United States v Chang Hong, 671 F3d 1147, 1158 [10th Cir 2011] [Padilla is not retroactive], and Chaidez v United States, 655 F3d 684, 686 [7th Cir 2011], cert granted 566 US —, 2012 WL 1468539 , 2012 US LEXIS 3335 [2012] [same], with United States v Orocio, 645 F3d 630, 633 [3d Cir 2011] [Padilla is retroactive]; see also Hill

2012Thus, prior to Padilla , defendants could only assert valid ineffective assistance claims where their attorneys had provided them with affirmatively incorrect advice regarding re moval consequences (see People v McDonald, 1 NY3d at 114-115 ; People v McKenzie, 4 AD3d 437, 439 [2004]).

2012Thus, prior to Padilla , defendants could only assert valid ineffective assistance claims where their attorneys had provided them with affirmatively incorrect advice regarding re moval consequences (see People v McDonald, 1 NY3d at 114-115 ; People v McKenzie, 4 AD3d 437, 439 [2004]).

2026"To establish ineffective assistance of counsel under the federal standard, a defendant is required to demonstrate that counsel['s] performance fell below an objective standard of reasonableness and that the deficient performance prejudiced the defense" ( People v Montgomery , 235 AD3d 1004 , 1005; see Strickland v Washington , 466 US 668, 693 ; People v Nicholson , 26 NY3d 813, 830 ). "'The first prong of the Strickland test is essentially a restatement of attorney competence, which requires a showing that counsel's representation fell below an objective standard of reasonableness'" ( People

2026"To establish ineffective assistance of counsel under the federal standard, a defendant is required to demonstrate that counsel['s] performance fell below an objective standard of reasonableness and that the deficient performance prejudiced the defense" ( People v Montgomery , 235 AD3d 1004 , 1005; see Strickland v Washington , 466 US 668, 693 ; People v Nicholson , 26 NY3d 813, 830 ). "'The first prong of the Strickland test is essentially a restatement of attorney competence, which requires a showing that counsel's representation fell below an objective standard of reasonableness'" ( People

2018Thus, the affidavit defendant submitted in support of his motion pursuant to CPL 440.10 to vacate the judgment of conviction demonstrates that defendant met the first prong of the Strickland test by establishing that his plea attorney's representation fell below an objective standard of reasonableness ( see Padilla v Kentucky , 559 US 356; Strickland v Washington , 466 US at 687; People v Turner , 5 NY3d 476; People v Stultz , 2 NY3d 277, 283 [2004]).

2018Thus, the affidavit defendant submitted in support of his motion pursuant to CPL 440.10 to vacate the judgment of conviction demonstrates that defendant met the first prong of the Strickland test by establishing that his plea attorney's representation fell below an objective standard of reasonableness ( see Padilla v Kentucky , 559 US 356; Strickland v Washington , 466 US at 687; People v Turner , 5 NY3d 476; People v Stultz , 2 NY3d 277, 283 [2004]).

2017The Court further explained that "detailed rules for counsel's conduct have no place in a Strickland inquiry"-i.e., in an ineffective assistance of counsel inquiry under the federal standard ( id. at 480 , 120 S.Ct. 1029 [internal quotation marks and citation omitted] ).

2017The Court further explained that "detailed rules for counsel's conduct have no place in a Strickland inquiry"-i.e., in an ineffective assistance of counsel inquiry under the federal standard ( id. at 480 , 120 S.Ct. 1029 [internal quotation marks and citation omitted] ).

2000At the outset we note that the courts of this State have not adopted the Strickland test for determining ineffective assistance of counsel claims but continue to apply a flexible standard to analyze claims based upon a deprivation of the right to effective assistance of counsel guaranteed under the New York Constitution (see, People v Benevento, supra, at 715; People v Vilardi, 76 NY2d 67, 74 ; People v Rivera, 71 NY2d 705 ; People v Benn, 68 NY2d 941 ; People v Baldi, 54 NY2d 137 , supra).

2000At the outset we note that the courts of this State have not adopted the Strickland test for determining ineffective assistance of counsel claims but continue to apply a flexible standard to analyze claims based upon a deprivation of the right to effective assistance of counsel guaranteed under the New York Constitution (see, People v Benevento, supra, at 715; People v Vilardi, 76 NY2d 67, 74 ; People v Rivera, 71 NY2d 705 ; People v Benn, 68 NY2d 941 ; People v Baldi, 54 NY2d 137 , supra).