You are here: / / DEFENDANT COULD HAVE PLED GUILTY TO AN OFFENSE THAT DID NOT REQUIRE DEPORTATION,...
, ,

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)

You might also like
WHERE MALPRACTICE IS APPARENT FROM AN INDEPENDENT REVIEW OF MEDICAL RECORDS, THOSE RECORDS CONSTITUTE TIMELY NOTICE OF THE FACTS CONSTITUTING THE CLAIM, PLAINTIFF’S MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY GRANTED (SECOND DEPT).
Bar Patron Was Beaten to Death by Other Patrons—Defendants (Bar and Premises Owners) Were Unable to Demonstrate the Attack Was Not Foreseeable and their Negligence Was Not the Proximate Cause of the Attack—Defendants’ Summary Judgment Motion Properly Denied
Motion for Resentencing Under CPL 440.46 (Drug Reform Law) Properly Denied
SNOW REMOVAL CONTRACTOR NOT LIABLE FOR SLIP AND FALL ON ICE, NO EVIDENCE CONTRACTOR CREATED OR EXACERBATED ICY CONDITION; FAILURE TO APPLY SALT NOT ENOUGH.
THE ORDER ISSUED AFTER A TRAVERSE HEARING FINDING DEFENDANTS WERE NOT PROPERLY SERVED IS APPEALABLE PURSUANT TO CPLR 5501 (C); THE ORDER BRINGS UP FOR APPEAL WHETHER THE TRAVERSE HEARING WAS NECESSARY; THE MAJORITY C0NCLUDED THE HEARING WAS NOT NECESSARY; THERE WAS AN EXTENSIVE DISSENT (SECOND DEPT).
STUDENT ASSUMED THE RISK OF BEING STRUCK BY A BASEBALL.
Evidence of Gang Membership Properly Admitted to Show Motive for Assault
NEWS REPORTS CONNECTING PLAINTIFF TO AN ATTEMPTED RAPE ABSOLUTELY PRIVILEGED UNDER CIVIL RIGHTS LAW, REPORTS ACCURATELY REFLECTED INFORMATION PROVIDED BY THE POLICE.

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

NOTICE OF APPEARANCE FILED BY AN ATTORNEY WAIVES ANY DEFENSE BASED UPON LACK... DEFENDANT’S DRIVING WHILE INTOXICATED AT HIGH SPEEDS AND IGNORING TRAFFIC...