You are here: / / THE RECORD WAS NOT SUFFICIENT FOR CONSIDERATION OF THE INEFFECTIVE ASSISTANCE...
, , , ,

THE RECORD WAS NOT SUFFICIENT FOR CONSIDERATION OF THE INEFFECTIVE ASSISTANCE ARGUMENT RE WHETHER DEFENDANT WAS ADEQUATELY INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA; THE PRECISE NATURE OF COUNSEL’S ADVICE WAS NOT IN THE RECORD; TWO-JUSTICE DISSENT (FIRST DEPT).

The First Department, over a two-justice dissent, determined the record was insufficient to preserve the ineffective assistance of counsel argument. The defendant argued that he was insufficiently informed about the deportation-risk associated with his guilty plea. The majority held that the record did not reflect the precise advice given by counsel and therefore the appropriate mechanism for review is a CPL 440.10 motion. The dissenters argued the record was sufficient to send the matter back for a motion to vacate the plea:

We do not agree with defendant’s attempt to exempt himself from the necessity of making a CPL 440.10 motion based on his counsel’s statements at the plea hearing concerning the off-the-record advice concerning immigration that had been rendered. To reiterate, counsel’s statements to the court, on their face, are general in nature and do not purport to describe the contents of the immigration advice that defendant actually received. The statement that defendant had been advised of “all possible consequences” was consistent both with accurate advice that the plea would subject him to mandatory deportation and with inaccurate advice that failed to warn him of that consequence. We cannot, on this record, tell whether the advice actually given was accurate or inaccurate. Certainly, it cannot be said that counsel’s statement establishes “irrefutably” … that the advice given was inaccurate, as is required to render a CPL 440.10 motion unnecessary. People v Gomez, 2020 NY Slip Op 04518, First Dept 8-13-20

 

You might also like
CITY DEFENDANTS SHOULD HAVE BEEN SANCTIONED FOR FAILURE TO PRESERVE PRE-ACCIDENT POLICE COMMUNICATIONS IN THIS POLICE-VEHICLE TRAFFIC ACCIDENT CASE BECAUSE THE CITY DEFENDANTS WERE AWARE THEY WOULD PROBABLY ASSERT AN EMERGENCY DEFENSE (FIRST DEPT).
COMMON INTEREST PRIVILEGE MAY APPLY TO SUBPOENAED DOCUMENTS.
Loss of Small Portion of Stenographic Record Did Not Require Reversal
Intent Must Exist Simultaneously with the Act/Accidental Discharge of a Firearm, Even Where the Shooter Intends to Assault the Victim, Does Not Constitute Intentional Assault/Loss of Police Officer’s Handwritten Notes Did Not Mandate Adverse Inference Jury Charge—Insufficient Showing of Prejudice
PETITIONER, WHO WAS GRANTED A LICENSE TO ENTER RESPONDENT’S PROPERTY UNDER RPAPL 881 TO MAKE REPAIRS ON PETITIONER’S PROPERTY (OTHERWISE NOT ACCESSIBLE), WAS REQUIRED TO PAY RESPONDENT A LICENSE FEE.
CITY NOT LIABLE FOR SLIP AND FALL IN CROSSWALK DURING STORM, ALLEGED FAILURE TO COMPLY WITH SNOW REMOVAL PROTOCOLS AND FAILURE TO APPLY SALT BEFORE THE STORM ARE NOT GROUNDS FOR LIABILITY (FIRST DEPT).
PLAINTIFF, WHO WAS ASSAULTED IN DEFENDANT’S BUILDING, DID NOT RAISE A QUESTION OF FACT ON WHETHER THE ASSAILANT WAS AN INTRUDER OR A TENANT, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (FIRST DEPT).
INDUSTRIAL CODE PROVISION WHICH REFERRED TO THE REQUIREMENT THAT A ‘DESIGNATED PERSON’ OPERATE A POWER BUGGY IS SPECIFIC ENOUGH TO SUPPORT A LABOR LAW 241 (6) CLAIM, PLAINTIFF WAS STRUCK BY A POWER BUGGY OPERATED BY SOMEONE WHO WAS NOT A ‘DESIGNATED PERSON’ (FIRST DEPT).

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

ALTHOUGH PETITIONER DEMONSTRATED THE INMATE LACKED THE CAPACITY TO MAKE A REASONED... THE FAILURE TO MENTION THE JUSTIFICATION DEFENSE ON THE VERDICT SHEET WAS NOT...