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DEFENDANT DEMONSTRATED HE WOULD NOT HAVE PLED GUILTY HAD HIS COUNSEL TOLD HIM DEPORTATION WAS MANDATORY, CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined defendant demonstrated a reasonable probability that he would not have pled guilty had he been told by his attorney that deportation was mandatory:

… [W]e agree with the defendant’s contention that the legal representation he received at the plea proceeding was deficient inasmuch as the plea minutes show that the defendant’s counsel, who was aware that the defendant was a noncitizen, advised him only that pleading guilty to a drug felony “may affect his [immigration] status” (emphasis added). Such advice was erroneous given that a felony drug conviction involving cocaine made the defendant’s deportation mandatory … , and where, as here, the deportation consequence is clear, counsel’s duty to give correct advice is equally clear … .

In order for the defendant to obtain vacatur of his plea of guilty based on a Padilla violation, he must also establish that ” there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial'” … . The Supreme Court, in its report, expressed the view that the evidence in the record, as supplemented by the defendant’s testimony at the hearing conducted upon remittal, evinced a reasonable probability that the defendant would not have pleaded guilty but for counsel’s incorrect advice regarding the immigration consequences of his plea, and would have insisted instead on going to trial. We agree, and discern no reason to disturb the credibility determinations made by the court … . People v Loaiza, 2018 NY Slip Op 01201, Second Dept 2-21-18

CRIMINAL LAW (DEFENDANT DEMONSTRATED HE WOULD NOT HAVE PLED GUILTY HAD HIS COUNSEL TOLD HIM DEPORTATION WAS MANDATORY, CONVICTION REVERSED (SECOND DEPT))/ATTORNEYS (CRIMINAL LAW, DEFENDANT DEMONSTRATED HE WOULD NOT HAVE PLED GUILTY HAD HIS COUNSEL TOLD HIM DEPORTATION WAS MANDATORY, CONVICTION REVERSED (SECOND DEPT))/GUILTY PLEA (DEPORTATION CONSEQUENCES, DEFENDANT DEMONSTRATED HE WOULD NOT HAVE PLED GUILTY HAD HIS COUNSEL TOLD HIM DEPORTATION WAS MANDATORY, CONVICTION REVERSED (SECOND DEPT))/IMMIGRATION (CRIMINAL LAW, DEPORTATION, DEFENDANT DEMONSTRATED HE WOULD NOT HAVE PLED GUILTY HAD HIS COUNSEL TOLD HIM DEPORTATION WAS MANDATORY, CONVICTION REVERSED (SECOND DEPT))

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