DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL; DEFENSE COUNSEL PROBABLY COULD HAVE WORKED OUT A PLEA TO AN OFFENSE WHICH DID NOT MANDATE DEPORTATION (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant did not receive effective assistance of counsel because there was a reasonable possibility a plea to something less than an aggravated felony could have been worked, with no mandatory deportation consequences:

At the hearing, defense counsel candidly admitted that he did not know, at the time of defendant’s plea, what an aggravated felony was, and that he mistakenly believed that defendant’s prior youthful offender adjudication, which resulted in a violation of probation charge that was disposed of at the same time as the instant plea, already rendered him deportable. However, New York YO adjudications are not considered criminal convictions for purposes of immigration law … . …

Accordingly, he did not attempt to obtain a sentence of less than one year on the third-degree conviction, which would have prevented it from being an aggravated felony, subjecting defendant, who is in removal proceedings, to mandatory deportation … . Counsel admitted that he had no strategic reason for not doing so; he simply did not know that defendant’s negotiated sentence of one to three years rendered robbery in the third degree an aggravated felony, or that defendant’s youthful offender adjudication did not render him deportable. People v Richards, 2019 NY Slip Op 08268, First Dept 11-14-19