DEFENDANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE WHEN DEFENSE COUNSEL TOLD HIM HE “MOST LIKELY” WOULD BE DEPORTED WHEN DEPORTATION WAS MANDATORY; APPEAL HELD IN ABEYANCE TO ALLOW DEFENDANT TO MOVE TO VACATE HIS PLEA; ONE DISSENT (FIRST DEPT).

The First Department, over a dissent, determined defendant did not receive effective assistance of counsel because his attorney told him he would “most likely” be deported when deportation was mandatory. The dissenter argued the record was not sufficient to conclude, as a matter of law, defense counsel was ineffective and a CPL 440 motion should be brought to flesh out the facts:

Defendant was deprived of effective assistance when his counsel advised his client that because of his plea, he “will most likely be deported[“],since it is clear that defendant’s drug-related conviction would trigger mandatory deportation under 8 USC § 1227 (a)(2)(B)(i) … . The remarks made by counsel on the record to the judge, as to what he advised his client with regard to the immigration consequences of his plea, are sufficient to permit review on direct appeal … . Thus, we hold this matter in abeyance to afford defendant the opportunity to move to vacate his plea upon a showing that there is a reasonable probability that he would not have pleaded guilty had he been made aware of the deportation consequences of his plea. People v Johnson, 2019 NY Slip Op 08348, First Dept 11-19-19