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DEFENDANT COULD HAVE PLED GUILTY TO AN OFFENSE THAT DID NOT REQUIRE DEPORTATION, MOTION TO VACATE CONVICTION PROPERLY GRANTED.

The Second Department determined defendant’s motion to vacate his conviction based upon ineffective assistance of counsel was properly granted. The hearing demonstrated defendant could have pled to an offense that would not result in mandatory deportation:

… [D]efendant established that he was denied the effective assistance of counsel because his counsel failed to attempt to negotiate a plea to a crime that would not have constituted an aggravated felony under federal law, and therefore would not have subjected him to mandatory deportation. The record establishes that the People were willing to accept a plea to a crime pursuant to Penal Law § 220.16(12) that would not have subjected the defendant to mandatory deportation and that defense counsel did not make such a request because he was not aware that a plea pursuant to Penal Law § 220.16(12) would not have subjected the defendant to mandatory deportation … . Moreover, defense counsel testified at a hearing on the motion to vacate the judgment of conviction that, had he known that a plea pursuant to Penal Law § 220.16(1) would have subjected the defendant to mandatory deportation, he would have attempted to negotiate a plea under Penal Law § 220.16(12) and would have advised the defendant not to take the plea that he ultimately took. This evidence supports the court’s finding that the defendant was not afforded meaningful representation as guaranteed by the New York Constitution …

Further, in light of the People’s admission that they would have been amenable to such a plea had defense counsel raised the issue, the defendant established that he was prejudiced by defense counsel’s conduct in failing to attempt to negotiate a plea that would not have subjected the defendant to mandatory deportation … . In addition, since the People refused at the time of the hearing on the motion to consent to vacate the defendant’s conviction so as to have the case restored to the calendar to allow the defendant to plead pursuant to Penal Law § 220.16(12), this further establishes that defense counsel’s failure to attempt to negotiate a plea pursuant to Penal Law § 220.16(12) at a time when the People were amenable to such a plea prejudiced the defendant and affected the “fairness of the process as a whole” … . People v Guzman, 2017 NY Slip Op 04291, 2nd Dept 5-31-17

 

CRIMINAL LAW (INEFFECTIVE ASSISTANCE, MOTION TO VACATE CONVICTION, DEFENDANT COULD HAVE PLED GUILTY TO AN OFFENSE THAT DID NOT REQUIRE DEPORTATION, MOTION TO VACATE CONVICTION PROPERLY GRANTED)/ATTORNEYS (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, DEFENDANT COULD HAVE PLED GUILTY TO AN OFFENSE THAT DID NOT REQUIRE DEPORTATION, MOTION TO VACATE CONVICTION PROPERLY GRANTED)/INEFFECTIVE ASSISTANCE (CRIMINAL LAW, DEFENDANT COULD HAVE PLED GUILTY TO AN OFFENSE THAT DID NOT REQUIRE DEPORTATION, MOTION TO VACATE CONVICTION PROPERLY GRANTED)/VACATE CONVICTION, MOTION TO DEFENDANT COULD HAVE PLED GUILTY TO AN OFFENSE THAT DID NOT REQUIRE DEPORTATION, MOTION TO VACATE CONVICTION PROPERLY GRANTED)

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