DESPITE HAVING MADE A PRIOR MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, DEFENDANT WAS ENTITLED TO A HEARING ON THE INSTANT MOTION WHICH WAS SUPPORTED BY AN AFFIDAVIT BY HIS ATTORNEY WHO ACKNOWLEDGED HE TOLD DEFENDANT A GUILTY PLEA WOULD NOT RESULT IN DEPORTATION (THIRD DEPT).

The Third Department, reversing County Court, determined defendant was entitled to a hearing on his motion to vacate his conviction on ineffective assistance grounds. The fact that defendant had made a similar motion which was denied did not preclude the instant motion which, unlike the prior motion, was supported by an affidavit from the attorney who handled defendant’s guilty plea. Defendant argued he would not have pled guilty had he been aware of the deportation consequences:

Contrary to the People’s contention, defendant’s failure to include an affidavit from this attorney on the first CPL article 440 motion did not preclude him from filing the second CPL article 440 motion that did contain such an affidavit (see CPL 440.10 [3] [c]… ). We further note that County Court’s denial of defendant’s motion was not mandatory as CPL 440.10 (3) provides that “in the interest of justice and for good cause shown [the court] may in its discretion grant the motion if it is otherwise meritorious and vacate the judgment” … .

In that vein, we note the numerous statements made in the supporting affidavit of defendant’s former attorney with respect to his representation of defendant in his 2000 criminal matter. The affidavit indicates that, upon being retained by defendant, his sole focus was on negotiating a favorable split sentence that would allow defendant to be released from custody as soon as possible. He admits that, in pursuing a favorable sentence, he did not conduct any investigation of the facts surrounding the underlying criminal offense, initiate any preindictment discovery or otherwise raise what he now identifies are arguably fatal deficiencies in the charges brought against defendant. With respect to defendant’s allegation that he was affirmatively misinformed regarding the potential immigration consequences of entering a guilty plea to a class C drug felony, the attorney candidly concedes that, despite being aware of the fact that defendant was only a lawful permanent resident and not a citizen of the United States at the time that defendant entered his September 2000 guilty plea, he specifically advised defendant that his guilty plea would have no effect on his lawful permanent resident status and that he would not be deported from the country. People v Perez, 2020 NY Slip Op 03825, Third Dept 7-9-20