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DEFENDANT’S COUNSEL WAS INEFFECTIVE IN THAT COUNSEL’S EXPLANATION OF THE IMMIGRATION CONSEQUENCES OF THE GUILTY PLEA WAS WRONG; MATTER REMITTED FOR A HEARING ON WHETHER THERE IS A REASONABLE POSSIBILITIY DEFENDANT WOULD NOT HAVE PLED GUILTY HAD HE BEEN PROPERLY INFORMED (FOURTH DEPT).

The Fourth Department, reversing County Court, determined defendant demonstrated his attorney gave him the wrong advice about the chances he would be deported based on his guilty plea and sent the matter back for hearing on whether the is a reasonable possibility defendant would not have pled guilty if he had been properly informed:

In support of [defendant’s motion to vacate his conviction], defendant’s attorney on the motion averred that defense counsel had given advice that was consistent with an assumption that the crime that defendant was pleading guilty to was a crime of moral turpitude within the meaning of the Immigration and Nationality Act (INA), for which an immigration judge could grant a cancellation of removal, when in actuality defendant was pleading guilty to an aggravated felony under the INA that would almost certainly result in deportation…. . People v Go, 2022 NY Slip Op 04258, Fourth Dept 7-1-22

Practice Point: Defendant moved to vacate his conviction by guilty plea on ineffective assistance grounds. Defendant demonstrated that his attorney’s explanation of the immigration consequences of the plea was wrong. Therefore County Court should have held a hearing on whether there is a reasonable possibility defendant would not have pled guilty had he been correctly informed.

 

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THE AMOUNT OF RESTITUTION WAS NOT PROVEN BY A PREPONDERANCE OF THE EVIDENCE;... THE ONE COUNT INDICTMENT WAS RENDERED DUPLICITOUS BY THE BILL OF PARTICULARS...