You are here: / / DESPITE THE STRENGTH OF THE EVIDENCE AGAINST HIM, DEFENDANT DEMONSTRATED...
, ,

DESPITE THE STRENGTH OF THE EVIDENCE AGAINST HIM, DEFENDANT DEMONSTRATED A DECISION TO GO TO TRIAL WOULD HAVE BEEN RATIONALE BECAUSE OF HIS FAMILY OBLIGATIONS; DEFENDANT WAS ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS; DEFENDANT ALLEGED HIS ATTORNEY MISADVISED HIM ON THE DEPORTATION CONSEQUENCES OF A GUILTY PLEA (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendant should have been afforded a hearing on his motion to vacate his conviction on ineffective assistance grounds. Defendant alleged he was misadvised of the deportation consequence of his guilty plea.

… [N]either the fact that the defendant had previously been convicted of an offense that may subject him to removal, nor the seemingly strong evidence against him with respect to the instant offense, nor the favorable plea bargain he received, necessarily requires a finding that the defendant was not prejudiced by his counsel’s alleged misadvice … . The defendant’s averments, including that he has resided in the United States since he was 10 years old, that he is married to his spouse with whom he has two minor children, that his spouse is unable to work due to a medical condition, that he is gainfully employed, and that he is the sole source of financial support to his family, sufficiently alleged that a decision to reject the plea offer would have been rational … . People v Samaroo, 2022 NY Slip Op 03128, Second Dept 5-11-22

Practice Point: Even if the evidence of defendant’s commission of the crime is strong, a defendant may demonstrate a decision to go to trial, rather than accept a plea offer, would have been rationale based upon family obligations. Here defendant, who is a legal resident and has lived in the US since he was ten, has two minor children, is employed, and his wife can’t work because of medical problems. Defendant brought a motion to vacate his conviction (by guilty plea) on the ground his attorney did not inform him of the deportation consequences of the plea. Defendant was entitled to a hearing on his motion.

 

You might also like
ARGUMENT RAISED FOR THE FIRST TIME IN REPLY PAPERS SHOULD NOT HAVE BEEN CONSIDERED, HOSPITAL DID NOT DEMONSTRATE IT WAS NOT VICARIOUSLY LIABLE FOR A PHYSICIAN BECAUSE THE WRITTEN AGREEMENTS CONCERNING THE RELATIONSHIP BETWEEN THE HOSPITAL AND THE PHYSICIAN WERE NOT SUBMITTED (SECOND DEPT).
CHAIRMAN OF THE BOARD OF PAROLE SHOULD NOT HAVE BEEN HELD IN CONTEMPT FOR FAILURE TO HOLD A DE NOVO PAROLE HEARING AS ORDERED BY THE ARTICLE 78 COURT, THE EXECUTIVE LAW DOES NOT CALL FOR A HEARING IN THIS CONTEXT, ONLY AN INTERVIEW (SECOND DEPT).
THE PLAINTIFF’S VERDICT IN THIS MEDICAL MALPRACTICE ACTION SHOULD HAVE BEEN SET ASIDE IN THE INTEREST OF JUSTICE; THE JUDGE PRECLUDED CROSS-EXAMINATION OF PLAINTIFF’S EXPERT ABOUT WHETHER THE OTHER DOCTORS WHO CONSULTED ON PLAINTIFF’S TREATMENT DEPARTED FROM ACCEPTED PRACTICE BY FAILING TO DO FURTHER DIAGNOSTIC TESTING; IF SO, FAULT WOULD BE SHARED PURSUANT TO CPLR 1601 (SECOND DEPT).
ALTHOUGH THE ATTORNEY REPRESENTING HIS MOTHER’S ESTATE IN A MEDICAL MALPRACTICE/WRONGFUL DEATH ACTION MAY BE A WITNESS, UNDER THE PARTICULAR FACTS OF THE CASE, DISQUALIFICATION PURSUANT TO THE ADVOCATE-WITNESS RULE WAS NOT REQUIRED (SECOND DEPT).
ALTHOUGH PLAINTIFF’S EXPERT’S THEORY IN THIS MEDICAL MALPRACTICE CASE WAS NOT SUPPORTED BY MEDICAL LITERATURE, THE THEORY HAD AN OBJECTIVE BASIS AND SHOULD NOT HAVE BEEN PRECLUDED AFTER A FRYE HEARING (SECOND DEPT).
PLAINTIFF’S ACTION ALLEGING INADEQUATE BUILDING SECURITY WAS A PROXIMATE CAUSE OF AN ASSAULT ON PLAINTIFF IN THE BUILDING LOBBY SHOULD NOT HAVE BEEN DISMISSED; THERE WAS EVIDENCE OF PRIOR CRIMINAL ACTIVITY RAISING A QUESTION OF FACT WHETHER THE ASSAULT WAS FORESEEABLE (SECOND DEPT).
ALTHOUGH THE SEARCH WARRANT DESCRIBED THE RESIDENCE AS HAVING TWO ENTRANCE DOORS, ONE LEADING TO THE AREA WHERE THE INFORMANT SAW THE FIREARMS AND ONE LEADING TO A STAIRWAY TO THE SECOND FLOOR (WHICH THE INFORMANT HAD NOT VISITED), THE WARRANT WAS NOT SEVERABLE AND WAS THEREFORE OVERBROAD (SECOND DEPT). ​
Plaintiff Could Not Demonstrate Valid “Nail and Mail” Service

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

THE “ABANDONMENT” EVIDENCE WAS NOT SUFFICIENT; MOTHER’S PARENTAL... TO BE ENFORCABLE, AN AGREEMENT TO ARBITRATE MUST BE CLEAR, EXPLICIT AND UNEQUIVOCAL;...