You are here: / / DEFENDANT WAS TOLD BY DEFENSE COUNSEL WHEN HE PLED GUILTY IN 2007 THAT...
, ,

DEFENDANT WAS TOLD BY DEFENSE COUNSEL WHEN HE PLED GUILTY IN 2007 THAT IF HE STAYED OUT OF TROUBLE WHILE ON PROBATION HE WOULD NOT BE DEPORTED, HOWEVER DEPORTATION WAS MANDATORY; DEFENDANT WAS ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION BASED UPON INEFFECTIVE ASSISTANCE OF COUNSEL; CRITERIA FOR DETERMINING WHETHER THERE WAS A REASONABLE PROBABILITY DEFENDANT WOULD HAVE GONE TO TRIAL, INCLUDING HIS UNDISPUTED STRONG DESIRE TO STAY IN THE US, EXPLAINED IN SOME DEPTH (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Renwick, reversing Supreme Court, determined defendant (Martinez) was entitled to a hearing on his CPL 440.10 motion to vacate his 2007 judgment of conviction. At the time defendant pled guilty the court warned him there could be immigration consequences, but defense counsel told him he wouldn’t have to worry about deportation if he stayed out of trouble while on probation. In fact, however, deportation was mandatory. Supreme Court denied the motion based in part on defendant’s motivation for it, i.e., the expansion of his taxi business in Massachusetts. The First Department noted that plaintiff’s current motivation for the motion to vacate is irrelevant. The matter was sent back for a hearing in front of a different judge:

In the context of a guilty plea, the ultimate question of prejudice is whether there was a reasonable probability that a reasonable person in a defendant’s circumstances would have gone to trial if given constitutionally adequate advice … . A defendant must convince the court that a decision to reject the plea bargain would have been rational … . In that regard, appropriate factors to be weighed include, among others, evidence of defendant’s incentive, at the time of his plea, to remain in the United States rather than his native country; his respective family and employment ties at the time of his plea, to the United States, as compared to his country of origin; the strength of the People’s case; and defendant’s sentencing exposure … . In answering the prejudice question, judges should be cognizant that a noncitizen defendant confronts a very different calculus than confronts a United States citizen … . For a noncitizen defendant, “preserving [his] right to remain in the United States may be more important to [him] than any jail sentence”… . Thus, a determination of whether it would be rational for a defendant to reject a plea offer “must take into account the particular circumstances informing the defendant’s desire to remain in the United States” … .

Significantly, on the record before this Court, there is reason to believe that Martinez would have given paramount importance to avoiding deportation, if he had known that it was more than a mere possibility, but was an unavoidable consequence of his plea to an aggravated felony. Indeed, evidence regarding Martinez’s background completely supports his current assertion that his main focus has been always to remain in the United States. This much is undisputed: his long history in the United States, his efforts to become a citizen, his family circumstances, and his gainful employment in Massachusetts, all signal his strong connection to, and desire to remain in, the United States … . People v Martinez, 2020 NY Slip Op 00252, First Dept 1-14-20

 

You might also like
ERROR TO IMPOSE PRE-JUDGMENT INTEREST AT THE STATUTORY RATE WHEN CONTRACT PROVIDED THAT THE INTEREST-BEARING DOWNPAYMENT WAS THE EXCLUSIVE REMEDY FOR BREACH.
APPEAL WAIVER INVALID, FLAWED ON-THE-RECORD EXPLANATION OF WAIVED RIGHTS NOT REMEDIED BY SIGNED WRITTEN WAIVER.
VICTIM’S IDENTIFICATION TESTIMONY WAS SUFFICIENT TO SUPPORT CONVICTION, DESPITE LOSS OF CONSCIOUSNESS, DIZZINESS AND INCONSISTENCIES.
WHEN DEFENDANT MADE STATEMENTS AT THE TIME OF THE PLEA WHICH RAISED A POSSIBLE INTOXICATION DEFENSE THE JUDGE SHOULD HAVE INQUIRED FURTHER; THE ISSUE NEEDN’T BE PRESERVED FOR APPEAL (FIRST DEPT).
Criminal Impersonation—Falsely Attributed E-Mails.
New York City Was Unable to Demonstrate Amendments to the Adult Use Zoning Regulations Were Necessary to Reduce the Negative Effects of Such Businesses on the Surrounding Areas–Therefore the Amendments Constituted an Unjustified Restriction on Speech
HEARING WAS REQUIRED TO DETERMINE WHETHER A PERMANENT STAY OF EVICTION WAS A PROPER ACCOMMODATION FOR DISABLED TENANTS PURSUANT TO THE FAIR HOUSING ACT (FIRST DEPT).
Operating a Scaffold for the Benefit of an Enumerated Activity Done by Others (Caulking) Entitles Scaffold Operator to Coverage Under Labor Law 240 (1)

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 © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

BECAUSE THE DEFENDANT EMPLOYER SUFFERED NO DAMAGE AS A RESULT OF PLAINTIFF’S... PLAINTIFF WAS ON A LADDER WHEN HE RECEIVED AN ELECTRIC SHOCK; THERE WAS NO SHOWING...