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DEFENSE COUNSEL FAILED TO INFORM DEFENDANT OF THE MANDATORY DEPORTATION CONSEQUENCE OF HIS GUILTY PLEA, DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE, GUILTY PLEA SHOULD HAVE BEEN VACATED (SECOND DEPT).

The Second Department, in a substantive decision, determined defendant’s motion to vacate his guilty plea on ineffective assistance grounds should have been granted. Defendant was not informed by his attorney that the plea would trigger mandatory deportation:

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… [D]efense counsel incorrectly advised the defendant that his plea of guilty to grand larceny in the second degree would preserve his eligibility to apply for a cancellation of removal, when, in fact, his conviction constituted an aggravated felony, rendering him mandatorily deportable and ineligible for cancellation of removal … . Courts have recognized the significance to a defendant, in pleading guilty, of a possibility of discretionary relief from removal … . The lack of such a possibility here was “succinct, clear, and explicit” and could have been determined simply from reading the text of the statute … . Thus, counsel had a duty to give correct advice as to the immigration consequences of the plea … . Counsel failed to do so, instead misadvising the defendant that there was a possibility of receiving a cancellation of removal. * * *

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Given the circumstances here, including the defendant’s focus on the immigration consequences of his plea, his large incentive to negotiate a plea which did not render him mandatorily deportable without eligibility for relief, the possibility of offering the People such a plea with the same sentence or even a longer aggregate sentence, and the fact that the prosecutor was unconcerned with the immigration consequences of the plea, the defendant established a reasonable probability that he could have negotiated a plea agreement that did not impose mandatory deportation without eligibility for relief … . Thus, the defendant established the requisite prejudice from counsel’s misadvice under Strickland, and further that counsel’s error was “egregious and prejudicial” such that it denied him meaningful representation under the New York Constitution … . People v Abdallah, 2017 NY Slip Op 06657, Second Dept 9-27-17

 

CRIMINAL LAW (INEFFECTIVE ASSISTANCE, DEPORTATION, DEFENSE COUNSEL FAILED TO INFORM DEFENDANT OF THE MANDATORY DEPORTATION CONSEQUENCE OF HIS GUILTY PLEA, DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE, GUILTY PLEA SHOULD HAVE BEEN VACATED (SECOND DEPT))/ATTORNEYS (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, DEPORTATION, DEFENSE COUNSEL FAILED TO INFORM DEFENDANT OF THE MANDATORY DEPORTATION CONSEQUENCE OF HIS GUILTY PLEA, DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE, GUILTY PLEA SHOULD HAVE BEEN VACATED (SECOND DEPT))/INEFFECTIVE ASSISTANCE (DEPORTATION,  DEFENSE COUNSEL FAILED TO INFORM DEFENDANT OF THE MANDATORY DEPORTATION CONSEQUENCE OF HIS GUILTY PLEA, DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE, GUILTY PLEA SHOULD HAVE BEEN VACATED (SECOND DEPT))/DEPORTATION (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, DEFENSE COUNSEL FAILED TO INFORM DEFENDANT OF THE MANDATORY DEPORTATION CONSEQUENCE OF HIS GUILTY PLEA, DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE, GUILTY PLEA SHOULD HAVE BEEN VACATED (SECOND DEPT))

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