You are here: / / DEFENSE COUNSEL FAILED TO INFORM DEFENDANT OF THE MANDATORY DEPORTATION...
, ,

DEFENSE COUNSEL FAILED TO INFORM DEFENDANT OF THE MANDATORY DEPORTATION CONSEQUENCE OF HIS GUILTY PLEA, DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE, GUILTY PLEA SHOULD HAVE BEEN VACATED (SECOND DEPT).

The Second Department, in a substantive decision, determined defendant’s motion to vacate his guilty plea on ineffective assistance grounds should have been granted. Defendant was not informed by his attorney that the plea would trigger mandatory deportation:

​

… [D]efense counsel incorrectly advised the defendant that his plea of guilty to grand larceny in the second degree would preserve his eligibility to apply for a cancellation of removal, when, in fact, his conviction constituted an aggravated felony, rendering him mandatorily deportable and ineligible for cancellation of removal … . Courts have recognized the significance to a defendant, in pleading guilty, of a possibility of discretionary relief from removal … . The lack of such a possibility here was “succinct, clear, and explicit” and could have been determined simply from reading the text of the statute … . Thus, counsel had a duty to give correct advice as to the immigration consequences of the plea … . Counsel failed to do so, instead misadvising the defendant that there was a possibility of receiving a cancellation of removal. * * *

​

Given the circumstances here, including the defendant’s focus on the immigration consequences of his plea, his large incentive to negotiate a plea which did not render him mandatorily deportable without eligibility for relief, the possibility of offering the People such a plea with the same sentence or even a longer aggregate sentence, and the fact that the prosecutor was unconcerned with the immigration consequences of the plea, the defendant established a reasonable probability that he could have negotiated a plea agreement that did not impose mandatory deportation without eligibility for relief … . Thus, the defendant established the requisite prejudice from counsel’s misadvice under Strickland, and further that counsel’s error was “egregious and prejudicial” such that it denied him meaningful representation under the New York Constitution … . People v Abdallah, 2017 NY Slip Op 06657, Second Dept 9-27-17

 

CRIMINAL LAW (INEFFECTIVE ASSISTANCE, DEPORTATION, DEFENSE COUNSEL FAILED TO INFORM DEFENDANT OF THE MANDATORY DEPORTATION CONSEQUENCE OF HIS GUILTY PLEA, DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE, GUILTY PLEA SHOULD HAVE BEEN VACATED (SECOND DEPT))/ATTORNEYS (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, DEPORTATION, DEFENSE COUNSEL FAILED TO INFORM DEFENDANT OF THE MANDATORY DEPORTATION CONSEQUENCE OF HIS GUILTY PLEA, DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE, GUILTY PLEA SHOULD HAVE BEEN VACATED (SECOND DEPT))/INEFFECTIVE ASSISTANCE (DEPORTATION,  DEFENSE COUNSEL FAILED TO INFORM DEFENDANT OF THE MANDATORY DEPORTATION CONSEQUENCE OF HIS GUILTY PLEA, DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE, GUILTY PLEA SHOULD HAVE BEEN VACATED (SECOND DEPT))/DEPORTATION (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, DEFENSE COUNSEL FAILED TO INFORM DEFENDANT OF THE MANDATORY DEPORTATION CONSEQUENCE OF HIS GUILTY PLEA, DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE, GUILTY PLEA SHOULD HAVE BEEN VACATED (SECOND DEPT))

You might also like
PETITIONERS, SIMPLY BY VIRTUE OF BEING RESIDENTS OF THE VILLAGE, HAD STANDING TO CHALLENGE THE VILLAGE BOARD’S ALLEGED VIOLATION OF THE OPEN MEETINGS LAW (SECOND DEPT).
DEFENDANT COULD HAVE PLED GUILTY TO AN OFFENSE THAT DID NOT REQUIRE DEPORTATION, MOTION TO VACATE CONVICTION PROPERLY GRANTED.
Criteria for Fraudulent Conveyance
VEHICLE AND TRAFFIC LAW 370 DID NOT EXEMPT COUNTY FROM PROVIDING UNINSURED MOTORIST COVERAGE FOR PERSONS DRIVING COUNTY CARS (SECOND DEPT). ​
THE TENANT WHICH SUPPLIED THE ALLEGEDLY DEFECTIVE LADDER TO THE PLAINTIFF IN THIS LADDER-FALL CASE WAS NOT ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 200 AND COMMON LAW NEGLIGENCE CAUSES OF ACTION (SECOND DEPT).
PLAINTIFF SHOULD NOT HAVE BEEN ALLOWED TO AMEND THE BILL OF PARTICULARS AFTER DISCOVERY WAS CLOSED TO RAISE A NEW THEORY OF LIABILITY STEMMING FROM FACTS NOT PREVIOUSLY ALLEGED; DEFENDANT OUT-OF-POSSESSION LANDLORD DEMONSTRATED THE LEASE DID NOT REQUIRE THE LANDLORD TO MAINTAIN THE DOOR WHICH PLAINTIFF ALLEGED CLOSED ON HER HAND (SECOND DEPT).
ACTION ALLEGING INJURY FROM A FALLING TREE ON DEFENDANT’S PROPERTY SHOULD HAVE BEEN DISMISSED, DEFENDANT DEMONSTRATED A LACK OF NOTICE OF THE CONDITION OF THE TREE (SECOND DEPT).
DEFENDANT ATTORNEYS DID NOT DEMONSTRATE PLAINTIFFS SUFFERED NO DAMAGES AS A RESULT OF DELAYS IN THE DEFENDANTS’ HANDLING OF EVICTION PROCEEDINGS, ALLEGING THAT PLAINTIFFS’ DAMAGES WERE SPECULATIVE MERELY POINTED TO GAPS IN PLAINTIFFS’ PROOF AND WAS INSUFFICIENT TO SUPPORT SUMMARY JUDGMENT IN DEFENDANTS’ FAVOR (SECOND DEPT).

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

MANIFEST NECESSITY JUSTIFIED DECLARATION OF A MISTRIAL OVER DEFENDANT’S... COMMERCIAL LIABILITY CARRIER NOT OBLIGATED TO DEFEND ACTION FOR BREACH OF CONTRACT,...