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DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL CONCERNING THE POSSIBILITY OF DEPORTATION BASED UPON HIS GUILTY PLEA, MOTION TO WITHDRAW THE PLEA GRANTED (SECOND DEPT).

The Second Department, granting defendant’s motion to withdraw his guilty plea, determined defense counsel did not provide effective assistance on whether the guilty plea would result in deportation and there was a reasonable probability defendant would not have pled guilty had he been correctly informed. Defense counsel told the court that defendant was going to be deported based upon a prior offense, but the facts indicated otherwise:

The defendant, through his new counsel, subsequently made a timely motion to withdraw his plea, which was summarily denied by the County Court. Upon remittal from this Court, the County Court held a proceeding pursuant to People v Tinsley (35 NY2d 926) and, upon questioning the defendant, determined that he had not received effective assistance of counsel at the time of the plea. We discern no basis in the record to disturb the County Court’s findings in this regard.

In order for the defendant to obtain vacatur of his plea of guilty based on Padilla v Kentucky (559 US 356), he must establish that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial  … . Although the County Court did not specifically address this question in its report, the record is sufficient for us to conclude that, but for counsel’s errors, there is a reasonable probability that the defendant—who has lived in the United States since the age of four and has significant family ties here, including a wife and three children, as well as parents and siblings—would not have pleaded guilty … . People v Ghingoree, 2018 NY Slip Op 07748, Second Dept 11-14-18

CRIMINAL LAW (INEFFECTIVE ASSISTANCE, IMMIGRATION LAW, DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL CONCERNING THE POSSIBILITY OF DEPORTATION BASED UPON HIS GUILTY PLEA, MOTION TO WITHDRAW THE PLEA GRANTED (SECOND DEPT))/ATTORNEYS, CRIMINAL LAW, DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL CONCERNING THE POSSIBILITY OF DEPORTATION BASED UPON HIS GUILTY PLEA, MOTION TO WITHDRAW THE PLEA GRANTED (SECOND DEPT))/INEFFECTIVE ASSISTANCE (CRIMINAL LAW, DEPORTATION, DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL CONCERNING THE POSSIBILITY OF DEPORTATION BASED UPON HIS GUILTY PLEA, MOTION TO WITHDRAW THE PLEA GRANTED (SECOND DEPT))/IMMIGRATION LAW (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, DEPORTATION, DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL CONCERNING THE POSSIBILITY OF DEPORTATION BASED UPON HIS GUILTY PLEA, MOTION TO WITHDRAW THE PLEA GRANTED (SECOND DEPT))/GUILTY PLEA, MOTION TO WITHDRAW (INEFFECTIVE ASSISTANCE, IMMIGRATION LAW, DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL CONCERNING THE POSSIBILITY OF DEPORTATION BASED UPON HIS GUILTY PLEA, MOTION TO WITHDRAW THE PLEA GRANTED (SECOND DEPT))/DEPORTATION (CRIMINAL LAW, INEFFECTIVE ASSISTANCE,  DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL CONCERNING THE POSSIBILITY OF DEPORTATION BASED UPON HIS GUILTY PLEA, MOTION TO WITHDRAW THE PLEA GRANTED (SECOND DEPT))

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Under the Unique Circumstances of this Case, the Neglect Adjudication Should Have Been Vacated Upon Compliance with the Conditions of the Suspended Judgment
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