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DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION, HE ADEQUATELY ALLEGED DEFENSE COUNSEL GAVE HIM WRONG INFORMATION ABOUT THE DEPORTATION CONSEQUENCES OF A GUILTY PLEA VERSUS A CONVICTION AFTER TRIAL.

The First Department determined defendant was entitled to hearing on his motion to vacate the judgment of conviction. Defendant alleged he was erroneously told he would not be deported if he pled guilty to a drug sale, but could be deported if convicted after trial:

This case presents factual issues requiring a hearing into whether defendant was deprived of effective assistance of counsel under People v McDonald (1 NY3d 109 [2003]) by way of erroneous and prejudicial immigration advice. Defendant alleges that his attorney erroneously advised him that if he pleaded guilty to a drug sale count with a sentence of probation, he would not be subject to deportation, but if he refused the plea offer, proceeded to trial and lost, he would go to prison and then be deported. Defendant’s claim is corroborated, to some extent, by statements made to present counsel by the attorney who represented defendant at the time of the plea … . The standard “no other promises” disclaimer in defendant’s plea allocution does not, as a matter of law, defeat his claim of erroneous legal advice. This case warrants a hearing at which defendant may establish the advice he actually received regarding the deportation consequences of his plea. …

This case also warrants a hearing on the prejudice prong of defendant’s claim. Defendant made a sufficient showing to raise an issue of fact as to whether he could have rationally rejected the plea offer under all the circumstances of the case, including the serious consequences of deportation and his incentive to remain in the United States … . Further, defendant sufficiently alleges that if immigration consequences had been factored into the plea bargaining process, counsel might have been able to negotiate a different plea agreement that would not have resulted in automatic deportation. People v Santos, 2016 NY Slip Op 08169, 1st Dept 12-6-16

 

CRIMINAL LAW (DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION, HE ADEQUATELY ALLEGED DEFENSE COUNSEL GAVE HIM WRONG INFORMATION ABOUT THE DEPORTATION CONSEQUENCES OF A GUILTY PLEA VERSUS A CONVICTION AFTER TRIAL)/ATTORNEYS (INEFFECTIVE ASSISTANCE, DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION, HE ADEQUATELY ALLEGED DEFENSE COUNSEL GAVE HIM WRONG INFORMATION ABOUT THE DEPORTATION CONSEQUENCES OF A GUILTY PLEA VERSUS A CONVICTION AFTER TRIAL)/INEFFECTICE ASSISTANCE (DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION, HE ADEQUATELY ALLEGED DEFENSE COUNSEL GAVE HIM WRONG INFORMATION ABOUT THE DEPORTATION CONSEQUENCES OF A GUILTY PLEA VERSUS A CONVICTION AFTER TRIAL)/VACATE CONVICTION, MOTION TO (DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION, HE ADEQUATELY ALLEGED DEFENSE COUNSEL GAVE HIM WRONG INFORMATION ABOUT THE DEPORTATION CONSEQUENCES OF A GUILTY PLEA VERSUS A CONVICTION AFTER TRIAL)

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