You are here: / / DEFENDANT’S PRO SE MOTION TO VACATE HIS CONVICTION SHOULD NOT HAVE...
, ,

DEFENDANT’S PRO SE MOTION TO VACATE HIS CONVICTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING BASED UPON THE ABSENCE OF AN ATTORNEY AFFIDAVIT, DEFENDANT ALLEGED HIS ATTORNEY DID NOT ACCURATELY INFORM HIM OF THE DEPORTATION CONSEQUENCES OF THE GUILTY PLEA AND THE FACTS CORROBORATED THE ALLEGATION (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gesmer, determined defendant’s motion to vacate his conviction (by guilty plea) should not have been denied without a hearing. The pro se papers were deemed sufficient to raise the issues of ineffective assistance (failure to accurately inform defendant of the deportation consequences of the plea) and prejudice should defendant be deported after he had successfully sought asylum. The court found that the absence of an attorney affidavit from the motion to vacate papers was explained and should have been excused. Although defendant pled to endangering the welfare of a child, his attorney allowed an allocution on the elements of sexual abuse in the first degree:

​

Here, the absence of an affidavit by defendant’s counsel does not support the summary denial of defendant’s motion for three reasons.

First, defendant’s allegations are corroborated by other parts of the record … . They are corroborated by defendant’s application to naturalize, postplea, which exposed him to detection by Immigration and Customs Enforcement (ICE), since he certainly would not have made the application if he had known that he was in any danger of deportation. In addition, counsel’s failure to object to the court’s unnecessary allocution on the elements of sexual abuse in the first degree … suggests that counsel may not have accurately understood the consequences of the plea.

Second, where, as here, defendant’s application is adverse and hostile to his trial attorney, “[r]equir[ing] the defendant to secure an affidavit, or explain his failure to do so, is wasteful and unnecessary” … .

Third, in any event, defendant explained the absence of an affidavit by his counsel … . People v Mebuin, 2017 NY Slip Op 09276, First Dept 12-28-17

 

CRIMINAL LAW (DEFENDANT’S PRO SE MOTION TO VACATE HIS CONVICTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING BASED UPON THE ABSENCE OF AN ATTORNEY AFFIDAVIT, DEFENDANT ALLEGED HIS ATTORNEY DID NOT ACCURATELY INFORM HIM OF THE DEPORTATION CONSEQUENCES OF THE GUILTY PLEA AND THE FACTS CORROBORATED THE ALLEGATION (FIRST DEPT))/VACATE CONVICTION, MOTION TO  (DEFENDANT’S PRO SE MOTION TO VACATE HIS CONVICTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING BASED UPON THE ABSENCE OF AN ATTORNEY AFFIDAVIT, DEFENDANT ALLEGED HIS ATTORNEY DID NOT ACCURATELY INFORM HIM OF THE DEPORTATION CONSEQUENCES OF THE GUILTY PLEA AND THE FACTS CORROBORATED THE ALLEGATION (FIRST DEPT))/ATTORNEYS (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, DEFENDANT’S PRO SE MOTION TO VACATE HIS CONVICTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING BASED UPON THE ABSENCE OF AN ATTORNEY AFFIDAVIT, DEFENDANT ALLEGED HIS ATTORNEY DID NOT ACCURATELY INFORM HIM OF THE DEPORTATION CONSEQUENCES OF THE GUILTY PLEA AND THE FACTS CORROBORATED THE ALLEGATION (FIRST DEPT))/INEFFECTIVE ASSISTANCE (DEFENDANT’S PRO SE MOTION TO VACATE HIS CONVICTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING BASED UPON THE ABSENCE OF AN ATTORNEY AFFIDAVIT, DEFENDANT ALLEGED HIS ATTORNEY DID NOT ACCURATELY INFORM HIM OF THE DEPORTATION CONSEQUENCES OF THE GUILTY PLEA AND THE FACTS CORROBORATED THE ALLEGATION (FIRST DEPT))

You might also like
A WAIVER OF APPEAL DOES NOT PRECLUDE A CHALLENGE TO A PROBATION CONDITION REQUIRING CONSENT TO WARRANTLESS SEARCHES; IN THE PLEA PROCEEDINGS, DEFENDANT ADMITTED PUNCHING THE VICTIM; THE PROBATION CONDITION ALLOWING SEARCHES FOR DRUGS AND WEAPONS HAD NO CONNECTION TO THE UNDERLYING OFFENSE (FIRST DEPT).
SIDEWALK DEFECT WAS NOT TRIVIAL AS A MATTER OF LAW, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).
Error to Charge Jury on Comparative Negligence/Inadequate Awards for Pain and Suffering and Loss of Consortium
FAILURE TO INFORM THE DEFENSE ABOUT A SECOND EYEWITNESS TO THE SHOOTING WAS A REVERSIBLE BRADY VIOLATION, THE MOTION TO VACATE SHOULD HAVE BEEN GRANTED; NEW TRIAL ORDERED (FIRST DEPT).
THE DIRECT BENEFITS THEORY OF ESTOPPEL WAS NOT APPLICABLE TO PLAINTIFF, A NONSIGNATORY TO THE AGREEMENT WITH THE ARBITRATION CLAUSE; THE PLAINTIFF, THERFORE, COULD NOT BE COMPELLED TO ARBITRATE (FIRST DEPT).
RES IPSA LOQUITUR DOCTRINE APPLIES IN THIS ELEVATOR-DOOR INJURY CASE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).
Question of Fact Whether Snow Removal Contractor Created Hazardous Condition by Inadequate Salting
DEFENDANT’S REQUEST TO REPRESENT HIMSELF, MADE DURING JURY SELECTION, WAS TIMELY, SUMMARY REJECTION OF THE REQUEST WITHOUT ANY INQUIRY REQUIRED REVERSAL.

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 © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

IN A DESIGN-BUILD TURNKEY PROJECT, A PROPERTY OWNER IS NOT A THIRD PARTY BENEFICIARY... PRIOR BURGLARY CONVICTION SHOULD NOT HAVE BEEN ALLOWED AS MOLINEUX AND SANDOVAL...