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DEFENDANT WAS ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION BY GUILTY PLEA ON INEFFECTIVE ASSISTANCE OF COUNSEL GROUNDS; DEFENDANT AVERRED HE WAS NOT INFORMED OF THE RISK OF DEPORTATION ASSOCIATED WITH THE PLEA (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant was entitled to a hearing on his motion to vacate his conviction on ineffective assistance grounds. Defendant averred that he was not informed of the risk of deportation associated with his guilty plea:

… [I]n the context of a plea of guilty, an attorney’s failure to advise a criminal defendant, or affirmative misadvice to the defendant, regarding the clear removal consequences of the plea constitutes deficient performance” … . In such cases, relief will depend upon whether the defendant can demonstrate prejudice as a result thereof … . …

… [T]he defendant avers that he was not advised of the immigration consequences of his pleas of guilty, and there is no evidence in the transcript of the extremely brief plea proceeding that defense counsel advised the defendant of such consequences. Moreover, the defendant’s averments, including that he has been in a long-term relationship with a United States citizen, with whom he has four children, sufficiently alleged that a decision to reject the plea offer, and take a chance, however slim, of being acquitted after trial, would have been rational … . People v Bernard, 2021 NY Slip Op 03601, Second Dept 6-9-21

 

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