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DEFENDANT SUFFICIENTLY DEMONSTRATED A PLEA WHICH WOULD NOT RESULT IN MANDATORY DEPORTATION COULD HAVE BEEN WORKED OUT; THE MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE OF COUNSEL GROUNDS SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion to set aside his conviction based upon ineffective assistance of counsel should not have been denied without a hearing. The defendant presented sufficient evidence that defense counsel could have negotiated a plea which would not result in mandatory deportation:

Where the basis of a claim for ineffective counsel is counsel’s failure to attempt to negotiate an immigration friendly plea, defendant has to show that there is a reasonable probability that the People would have made such an offer … . If the likelihood that the People would have made such an offer is speculative, then the motion may be denied without a hearing … . Here, however, defendant’s motion shows that there was a reasonable possibility that his plea counsel could have secured a plea deal with less severe immigration consequences. …

Defendant has adequately alleged that there was a reasonable possibility that the People would have offered defendant such a plea, despite the fact that the drug possession charge is a lesser-included offense to the drug sale charge. First, the People agreed to a sentence of one year in prison and one year of post-release supervision in order to cover defendant’s drug offenses. This suggests that there was a reasonable possibility that the People would have agreed to a different, immigration-favorable disposition resulting in the same aggregate prison time … . …

Second, both offenses subject defendant to equally enhanced sentences if he were to be convicted of another felony within 10 years … . …

Third, if the People had only been willing to offer the lesser-included offense together with a longer sentence, defendant might well have been willing to agree to that. …

Finally, there is no evidence that the People specifically sought a conviction on the drug sales offense in order to secure a harsher immigration consequence for defendant … . …

‘… [D]efendant demonstrated a reasonable possibility that he would have rejected his plea had he known that he could have obtained a sentence that had less harsh immigration consequences … . People v George, 2020 NY Slip Op 02852, First Dept 5-14-20

 

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