DEFENDANT’S MOTION TO VACATE HIS CONVICTION BY GUILTY PLEA SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, DEFENDANT SUFFICIENTLY ALLEGED HIS COUNSEL PROVIDED WRONG INFORMATION ABOUT THE POSSIBILITY OF DEPORTATION.

The Fourth Department determined defendant's motion to vacate his conviction by guilty plea should not have been denied without a hearing. Defendant alleged his attorney wrongly told him there was no possibility defendant would be deported based upon the conviction:

In support of his motion, defendant, who is not a United States citizen, submitted an affidavit in which he asserted that his attorney advised him prior to the plea that “there is no way in the world” that he would be deported as a result of his plea because he was being sentenced to less than five years in prison. Defendant further asserted that he would not have pleaded guilty had he been properly advised of the deportation consequences of the plea. According to defendant, he was deported to Jamaica after serving his term of imprisonment.

As the Court of Appeals has held, an affirmative misstatement of the law regarding the deportation consequences of a plea may provide a basis for vacatur of the plea if it can be shown that the defendant was thereby prejudiced, i.e., there is a reasonable probability that the defendant would not otherwise have pleaded guilty … . Here, we conclude that defendant's sworn assertions, if true, entitle him to relief and, because it cannot be said that his assertions are incredible as a matter of law, a hearing is required. We reject the People's contention that the court properly denied the motion because defendant failed to submit an affidavit from his former attorney corroborating his claim … . Where, as here, defendant's “application is adverse and hostile to his trial attorney,” it “is wasteful and unnecessary” to require the defendant to secure an affidavit from counsel, or to explain his failure to do so … . Moreover, contrary to the People's further contention, defendant's assertion that he would not have pleaded guilty if he had been properly advised regarding deportation is sufficient to raise an issue of fact whether he was prejudiced by counsel's alleged error … . People v Bennett, 2016 NY Slip Op 03608, 4th Dept 5-6-16

CRIMINAL LAW (MOTION TO VACATE CONVICTION BY GUILTY PLEA SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, DEFENDANT SUFFICIENTLY ALLEGED HIS COUNSEL PROVIDED WRONG INFORMATION ABOUT THE POSSIBILITY OF DEPORTATION)/VACATE CONVICTION, MOTION TO (MOTION TO VACATE CONVICTION BY GUILTY PLEA SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, DEFENDANT SUFFICIENTLY ALLEGED HIS COUNSEL PROVIDED WRONG INFORMATION ABOUT THE POSSIBILITY OF DEPORTATION)