The Second Department determined defendant was entitled to a hearing on his motion to vacate his conviction based upon ineffective assistance of counsel. Defendant sufficiently alleged he was misinformed about the deportation consequences of his guilty plea and he would not have pled guilty if he had known of those consequences:
Here, the defendant alleged in an affidavit that his attorney advised him that there would be no immigration consequences to his plea of guilty if he was sentenced to not more than one year in jail, and that immigration authorities would not seek him out in Massachusetts, where he resided, since his case was in New York. * * * … [A]lthough the defendant’s claim of misadvice was based solely on his own sworn allegations, the defendant explained his failure to submit an affirmation from his former attorney and it is unlikely, as the People suggest, that there were witnesses to counsel’s provision of confidential advice or any documents created reflecting the content of that advice * * *
… [T]he defendant averred that he had been a lawful permanent resident for 24 years, that he had a 7-year-old son, that his parents and four siblings all lived in the United States, and that he was employed at the same job for 10 years. Further, if sentenced as a first felony drug offender, as he was in connection with his plea of guilty, the defendant’s sentencing exposure was a maximum of 5½ years of imprisonment (see Penal Law § 70.70[2][a][ii]). In light of these circumstances, there is a question of fact as to whether it is reasonably probable that the defendant would not have pleaded guilty had he been correctly advised as to the deportation consequences of the plea … . People v Roberts, 2016 NY Slip Op 06729, 2nd Dept 10-12-16
CRIMINAL LAW (DEFENDANT ENTITLED TO A HEARING RE: WHETHER HIS CONVICTION SHOULD BE VACATED; DEFENDANT SUFFICIENTLY ALLEGED HE WAS NOT ADVISED OF THE DEPORTATION CONSEQUENCES OF THE PLEA, AND HE WOULD NOT HAVE PLED GUILTY HAD HE BEEN AWARE OF THE CONSEQUENCES)/VACATE CONVICTION, MOTION TO (DEFENDANT ENTITLED TO A HEARING RE: WHETHER HIS CONVICTION SHOULD BE VACATED; DEFENDANT SUFFICIENTLY ALLEGED HE WAS NOT ADVISED OF THE DEPORTATION CONSEQUENCES OF THE PLEA, AND HE WOULD NOT HAVE PLED GUILTY HAD HE BEEN AWARE OF THE CONSEQUENCES)/ATTORNEYS (INEFFECTIVE ASSISTANCE, DEFENDANT ENTITLED TO A HEARING RE: WHETHER HIS CONVICTION SHOULD BE VACATED; DEFENDANT SUFFICIENTLY ALLEGED HE WAS NOT ADVISED OF THE DEPORTATION CONSEQUENCES OF THE PLEA, AND HE WOULD NOT HAVE PLED GUILTY HAD HE BEEN AWARE OF THE CONSEQUENCES)/INEFFECTIVE ASSISTANCE DEFENDANT ENTITLED TO A HEARING RE: WHETHER HIS CONVICTION SHOULD BE VACATED; DEFENDANT SUFFICIENTLY ALLEGED HE WAS NOT ADVISED OF THE DEPORTATION CONSEQUENCES OF THE PLEA, AND HE WOULD NOT HAVE PLED GUILTY HAD HE BEEN AWARE OF THE CONSEQUENCES)/DEPORTATION (CRIMINAL LAW, DEFENDANT ENTITLED TO A HEARING RE: WHETHER HIS CONVICTION SHOULD BE VACATED; DEFENDANT SUFFICIENTLY ALLEGED HE WAS NOT ADVISED OF THE DEPORTATION CONSEQUENCES OF THE PLEA, AND HE WOULD NOT HAVE PLED GUILTY HAD HE BEEN AWARE OF THE CONSEQUENCES)