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DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO OBJECT TO PROSECUTOR’S EXAGGERATING THE NATURE AND IMPORTANCE OF DNA EVIDENCE.

The Fourth Department reversed defendant’s conviction and ordered a new trial because of prosecutorial misconduct to which defense counsel did not object. The prosecutor grossly exaggerated the nature and importance of DNA evidence found on a weapon. Defense counsel’s failure to object constituted ineffective assistance:

At trial, the People presented testimony of a forensic expert to discuss DNA evidence collected from the gun, but the testimony was not conclusive. The expert testified that she analyzed the DNA mixture and determined that defendant was among 1 in 15 Americans who could not be excluded as a contributor. Nevertheless, on summation, the prosecutor grossly exaggerated the DNA evidence as “overwhelming” proof establishing defendant’s “guilt beyond all doubt” and posited: “If the defendant had not possessed the gun, wouldn’t science have excluded him?” In our view, the prosecutor’s flagrant distortion of the DNA evidence caused defendant such substantial prejudice that he was denied due process of law, particularly in light of the circumstantial nature of the People’s case … . In light of the foregoing, we agree with defendant’s related contention that he was denied effective assistance of counsel owing to defense counsel’s failure to object to the prosecutor’s misconduct during summation … . People v Rozier, 2016 NY Slip Op 06577, 4th Dept 10-7-16

CRIMINAL LAW (DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO OBJECT TO PROSECUTOR’S EXAGGERATING THE NATURE AND IMPORTANCE OF DNA EVIDENCE)/ATTORNEYS (CRIMINAL LAW, DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO OBJECT TO PROSECUTOR’S EXAGGERATING THE NATURE AND IMPORTANCE OF DNA EVIDENCE)/EVIDENCE (CRIMINAL LAW, DNA, DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO OBJECT TO PROSECUTOR’S EXAGGERATING THE NATURE AND IMPORTANCE OF DNA EVIDENCE)/PROSECUTORIAL MISCONDUCT (DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO OBJECT TO PROSECUTOR’S EXAGGERATING THE NATURE AND IMPORTANCE OF DNA EVIDENCE)/INEFFECTIVE ASSISTANCE (DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO OBJECT TO PROSECUTOR’S EXAGGERATING THE NATURE AND IMPORTANCE OF DNA EVIDENCE)/DNA (CRIMINAL LAW, DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO OBJECT TO PROSECUTOR’S EXAGGERATING THE NATURE AND IMPORTANCE OF DNA EVIDENCE)

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DEFENDANT ENTITLED TO A HEARING ON HER MOTION TO VACATE HER CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS.

The Fourth Department determined defendant was entitled to a hearing on her motion to vacate her conviction on ineffective assistance grounds. Defendant testified her husband’s neck was cut in a struggle for the knife her husband had used to attack her. The People apparently argued defendant’s wounds were self-inflicted. There was evidence of a wound behind defendant’s left armpit which could not have been self-inflicted. The Fourth Department held that defense counsel’s failure to show the jury the wound, failure to engage an expert concerning the wound, failure to examine defendant’s clothing and failure to show the clothing to the jury could amount to ineffective assistance of counsel because such evidence would demonstrate the wound behind the armpit was not surgical in origin (as was argued at trial). A hearing, therefore, should have been held:

Defendant … submitted an affirmation from her appellate counsel, who examined the shirts and asserted that, contrary to the testimony of the … prosecution witness, the holes in the shirts matched precisely the location of defendant’s alleged stab wound behind her left armpit. At oral argument of the motion, appellate counsel urged the court to examine the garments before ruling on the motion. The court declined to do so and denied defendant’s motion without a hearing.

We conclude that, if, as appellate counsel asserts, there are holes in the shirts defendant was wearing at the time of the altercation matching the wound behind her left armpit, in the absence of some strategic explanation, the failure of defendant’s trial attorney to examine that clothing, coupled with his failure to call a medical expert to discuss the wound and to show the wound to the jury, would have been so ” egregious and prejudicial’ ” as to deprive defendant of a fair trial … . Because defendant’s “submissions [thus] tend[ ] to substantiate all the essential facts’ necessary to support [her] claim of ineffective assistance of counsel” … , we conclude that the court should have held a hearing on the motion … . People v Smith, 2016 NY Slip Op 06565, 4th Dept 10-7-16

 

 

CRIMINAL LAW (DEFENDANT ENTITLED TO A HEARING ON HER MOTION TO VACATE HER CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS)/ATTORNEYS (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, DEFENDANT ENTITLED TO A HEARING ON HER MOTION TO VACATE HER CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS)/VACATE CONVICTION, MOTION TO (DEFENDANT ENTITLED TO A HEARING ON HER MOTION TO VACATE HER CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS)/INEFFECTIVE ASSISTANCE (MOTION TO VACATE CONVICTION,DEFENDANT ENTITLED TO A HEARING ON HER MOTION TO VACATE HER CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS)

STATUTORY NOTICE REQUIREMENTS FOR GRAND JURY PRESENTATION STRICTLY CONSTRUED AND ENFORCED, CONVICTION REVERSED FOR FAILURE TO NOTIFY DEFENDANT OF THE TIME AND PLACE OF THE PRESENTATION.

The Fourth Department, reversing defendant’s conviction, determined the People’s notice to defendant about the time and place the grand jury presentation would take place was deficient. The prosecutor told defense counsel the presentation would take place the next day:

Here, we conclude that, after receiving defendant’s March 1, 2013 request to appear before the grand jury, the People did not provide defendant with notice “of the time and place of the grand jury presentation” … , as is required by CPL 190.50 (5) (b), and we therefore reverse. We note that, on March 25, 2013, the People sent a letter to defense counsel stating that, “during the week of April 8, 2013, the Erie County Grand Jury will hear testimony concerning this matter. In accordance with CPL 190.50, should your client wish to testify, please clearly state so, in writing, no later than April 5, 2013, so that I can make the necessary arrangements to receive his testimony.” Although that letter would have been sufficient to satisfy the initial and separate requirement set forth in CPL 190.50 (5) (a) that the People notify defendant of his right to appear before the grand jury … , the letter did not satisfy the requirements of CPL 190.50 (5) (b) to inform defendant of the time and place of the grand jury presentation, which were triggered by defendant’s March 1, 2013 request to appear before the grand jury. It is of no moment that defendant did not respond to the People’s letter because nothing in CPL 190.50 requires a defendant to resubmit a valid notice pursuant to CPL 190.50 (5) (a) when he has already done so. We further note that the prosecutor’s oral statement to defense counsel on April 10, 2013 that “he will be presenting the matter to the Erie County Grand Jury the next day” was insufficient to satisfy the notice requirement inasmuch as it did not provide defendant with the requisite notice of the time and place of the grand jury presentation … . People v Moss, 2016 NY Slip Op 06587, 4th Dept 10-7-16

CRIMINAL LAW (STATUTORY NOTICE REQUIREMENTS FOR GRAND JURY PRESENTATION STRICTLY CONSTRUED AND ENFORCED, CONVICTION REVERSED FOR FAILURE TO NOTIFY DEFENDANT OF THE TIME AND PLACE OF THE PRESENTATION)/GRAND JURY (STATUTORY NOTICE REQUIREMENTS FOR GRAND JURY PRESENTATION STRICTLY CONSTRUED AND ENFORCED, CONVICTION REVERSED FOR FAILURE TO NOTIFY DEFENDANT OF THE TIME AND PLACE OF THE PRESENTATION)

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DEFENSE COUNSEL’S LETTER REQUESTING A PLEA-BARGAIN CONFERENCE WAS NOT A WAIVER OF DEFENDANT’S SPEEDY TRIAL RIGHTS.

The Fourth Department, reversing County Court, determined defendant’s motion to dismiss the marijuana-related indictments should have been granted on speedy trial grounds. The Fourth Department found that defense counsel’s letter asking for a discussion of a plea bargain could not be construed as a waiver of defendant’s speedy trial rights:

Defense counsel did not explicitly state or even suggest in his letter that he was waiving his client’s rights to a speedy trial under CPL 30.30; instead, counsel merely requested an opportunity to discuss a plea bargain before the District Attorney presented the case to the grand jury. In our view, that request does not constitute an explicit and “unambiguous” waiver of defendant’s speedy trial rights … , and we thus conclude that “the People failed to meet their burden of proving that the disputed . . . period was not chargeable to them” … . People v Leubner, 2016 NY Slip Op 06569, 4th Dept 10-7-16

CRIMINAL LAW (DEFENSE COUNSEL’S LETTER REQUESTING A PLEA-BARGAIN CONFERENCE WAS NOT A WAIVER OF DEFENDANT’S SPEEDY TRIAL RIGHTS)/SPEEDY TRIAL (DEFENSE COUNSEL’S LETTER REQUESTING A PLEA-BARGAIN CONFERENCE WAS NOT A WAIVER OF DEFENDANT’S SPEEDY TRIAL RIGHTS)

SIX YEAR DELAY IN BRINGING DEFENDANT TO TRIAL WAS NOT MOTIVATED BY THE PEOPLE’S ATTEMPT TO GAIN A TACTICAL ADVANTAGE; DISMISSAL ON SPEEDY TRIAL GROUNDS PROPERLY DENIED.

The First Department, over an extensive two-justice dissent, determined the trial court properly denied defendant’s motion to dismiss on speedy-trial grounds stemming from the six-year delay between the shooting and trial. The defendant and another man, Armstead, were charged in the shooting death of a bystander while intending to shoot another. The People wanted to convict Armstead before trying defendant in the hope Armstead would testify against defendant. Three trials of Armstead ended in at least a partial mistrial. Before the fourth trial, Armstead pled guilty to manslaughter. Over the course of the six years, delays were incurred, inter alia, because counsel were unavailable and because of damage caused by Hurricane Sandy:

The chronology of this case highlights some of the problems faced by the courts of this state in large metropolitan areas. These include overburdened courts, overcrowded jails, and overworked prosecutors and legal services defense counsel. Nevertheless, these issues must be considered in the context of this particular case as they affect, if at all, this particular defendant.

The dissent tends to minimize the defense side of the equation in determining the reason for the delay, choosing to focus on the prosecution’s attempt to get Armstead to testify against defendant as the main reason for the delay in bringing him to trial. While the attempt to get Armstead to testify against defendant certainly played an important role in the delay, it is not the only reason and ignores the many other causes for the delay.

The … chronology shows that much of the delay was occasioned by requests for adjournments by defendant and/or his codefendant for motion practice, change of counsel, discovery proceedings, unavailability of co-defendant’s counsel and the like. In the analogous CPL 30.30 situation, adjournments granted with a codefendant’s consent are not chargeable to the People … , and they should not be chargeable here. Despite the dissent’s conclusion to the contrary, the record supports the conclusion that these adjournments were not motivated by a goal on the part of the People to gain an unfair tactical advantage over defendant … . People v Wiggins, 2016 NY Slip Op 06538, 1st Dept 10-6-16

 

CRIMINAL LAW (SIX YEAR DELAY IN BRINGING DEFENDANT TO TRIAL WAS NOT MOTIVATED BY THE PEOPLE’S ATTEMPT TO GAIN A TACTICAL ADVANTAGE; DISMISSAL ON SPEEDY TRIAL GROUNDS PROPERLY DENIED)/SPEEDY TRIAL (SIX YEAR DELAY IN BRINGING DEFENDANT TO TRIAL WAS NOT MOTIVATED BY THE PEOPLE’S ATTEMPT TO GAIN A TACTICAL ADVANTAGE; DISMISSAL ON SPEEDY TRIAL GROUNDS PROPERLY DENIED)

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15-YEAR PERIOD DURING WHICH DEFENDANT DID NOT REOFFEND IS A GROUND FOR A DOWNWARD DEPARTURE IN SETTING THE SORA RISK LEVEL.

The Second Department determined defendant was entitled to a downward departure based upon a 15-year period during which defendant did not reoffend. Defendant’s SORA risk level was reduced from three to two:

In light of the purpose of SORA, which is to assess the risk that the offender poses while at liberty, lengthy periods during which the defendant has been at liberty after the offense are significant in determining the risk of reoffense and the danger posed in the event of reoffense …  . Since these periods are not taken into account in the risk assessment instrument (hereinafter the RAI), they are a permissible ground for departure … . Here, the defendant committed a sex offense in New Jersey in 1982. In the time between that crime and the SORA hearing, which was held in 2012, after the defendant returned to New York, he was incarcerated in New Jersey for approximately 15 years, and he was also at liberty for approximately the same amount of time without reoffending. In light of the lengthy amount of time without reoffense, we conclude that the RAI overstated the defendant’s risk of reoffense. People v Sotomayer, 2016 NY Slip Op 06482, 2nd Dept 10-5-16

CRIMINAL LAW (15-YEAR PERIOD DURING WHICH DEFENDANT DID NOT REOFFEND IS A GROUND FOR A DOWNWARD DEPARTURE IN SETTING THE SORA RISK LEVEL)/SEX OFFENDER REGISTRATION ACT (SORA) (15-YEAR PERIOD DURING WHICH DEFENDANT DID NOT REOFFEND IS A GROUND FOR A DOWNWARD DEPARTURE IN SETTING THE SORA RISK LEVEL)

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SEARCH OF BRIEFCASE FOUND NEAR DEFENDANT UPON ARREST WAS NOT A VALID SEARCH INCIDENT TO ARREST AND WAS NOT JUSTIFIED BY EXIGENT CIRCUMSTANCES; EVIDENCE OF ROBBERY FOUND IN THE BRIEFCASE SHOULD HAVE BEEN SUPPRESSED.

 

The Second Department, reversing Supreme Court, determined there were no exigent circumstances justifying the warrantless search of a briefcase found on a parked car near where defendant was arrested. Defendant was identified by a store clerk as the person who had just robbed him at gunpoint and a loaded gun was found on defendant’s person upon arrest:

Because “[a]ll warrantless searches presumptively are unreasonable per se, . . . [w]here a warrant has not been obtained, it is the People who have the burden of overcoming this presumption of unreasonableness” … . Under the New York State Constitution, an individual’s right of privacy in his or her personal effects dictates that a warrantless search incident to arrest be deemed unreasonable unless (1) it satisfies certain “spatial and temporal limitations to ensure that the search is not significantly divorced in time or place from the arrest” and (2) it is justified by the presence of exigent circumstances … . “Exigency must be affirmatively demonstrated” … . Exigent circumstances may be established by a showing that the search was necessary to ensure the safety of the public or the arresting officer, or that it was necessary to prevent the destruction or concealment of evidence … .

Contrary to the Supreme Court’s determination, the search of the briefcase was not justified as a search incident to a lawful arrest. The People failed to present evidence establishing exigent circumstances at the time of the arrest that would justify the search. The arresting officer did not claim that he searched the briefcase out of concern for the safety of himself or the public and, in any event, the circumstances did not support a reasonable belief that the briefcase contained a weapon … . Additionally, the officer did not claim that he searched the briefcase to prevent the defendant from destroying evidence and, in any event, the facts do not support such a claim. Moreover, despite the People’s contention to the contrary, the error was not harmless, as it cannot be said that there was no significant probability that the jury would have acquitted the defendant of robbery in the first degree had it not been for the error … . People v Houston, 2016 NY Slip Op 06510, 2nd Dept 10-5-16

 

CRIMINAL LAW (SEARCH OF BRIEFCASE FOUND NEAR DEFENDANT UPON ARREST WAS NOT A VALID SEARCH INCIDENT TO ARREST AND WAS NOT JUSTIFIED BY EXIGENT CIRCUMSTANCES; EVIDENCE OF ROBBERY FOUND IN THE BRIEFCASE SHOULD HAVE BEEN SUPPRESSED)/EVIDENCE (CRIMINAL LAW, SEARCH OF BRIEFCASE FOUND NEAR DEFENDANT UPON ARREST WAS NOT A VALID SEARCH INCIDENT TO ARREST AND WAS NOT JUSTIFIED BY EXIGENT CIRCUMSTANCES; EVIDENCE OF ROBBERY FOUND IN THE BRIEFCASE SHOULD HAVE BEEN SUPPRESSED)/SUPPRESSION (SEARCH OF BRIEFCASE FOUND NEAR DEFENDANT UPON ARREST WAS NOT A VALID SEARCH INCIDENT TO ARREST AND WAS NOT JUSTIFIED BY EXIGENT CIRCUMSTANCES; EVIDENCE OF ROBBERY FOUND IN THE BRIEFCASE SHOULD HAVE BEEN SUPPRESSED)

SENTENCE FOR CONSPIRACY COUNT OF AN INDICTMENT SHOULD HAVE BEEN IMPOSED CONCURRENTLY WITH SENTENCES FOR OVERT ACTS WITH WHICH DEFENDANT HAD PREVIOUSLY BEEN CHARGED IN A SUPERIOR COURT INFORMATION.

The Second Department determined the sentences imposed for conspiracy and criminal possession of a controlled substance should run concurrently, not consecutively. The possession offenses, charged in a superior court information (SCI) to which defendant pled guilty, were the overt acts charged in the conspiracy count of a subsequent indictment:

As charged here, the underlying crimes were criminal possession of a controlled substance in the second degree and criminal sale of a controlled substance in the second degree. The offenses of criminal possession of a controlled substance in the third and fourth degrees, to which the defendant pleaded guilty as charged under the SCI, were based on the same acts charged, in the indictment, as overt acts committed in furtherance of the conspiracy in the second degree count. As such, the actus reus of each of the offenses charged in the SCI was, by definition, “a material element” of the offense charged in the indictment … . Since the People failed to establish the legality of consecutive sentences by showing that the acts committed by the defendant were separate and distinct acts … , the County Court should have directed that the sentence imposed under the indictment run concurrently with the sentences imposed under the SCI. People v Rifino, 2016 NY Slip Op 06513, 2nd Dept 10-5-16

CRIMINAL LAW (SENTENCE FOR CONSPIRACY COUNT OF AN INDICTMENT SHOULD HAVE BEEN IMPOSED CONCURRENTLY WITH SENTENCES FOR OVERT ACTS WITH WHICH DEFENDANT HAD PREVIOUSLY BEEN CHARGED IN A SUPERIOR COURT INFORMATION)/SENTENCING (SENTENCE FOR CONSPIRACY COUNT OF AN INDICTMENT SHOULD HAVE BEEN IMPOSED CONCURRENTLY WITH SENTENCES FOR OVERT ACTS WITH WHICH DEFENDANT HAD PREVIOUSLY BEEN CHARGED IN A SUPERIOR COURT INFORMATION)

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STATEMENTS BY SHOOTING VICTIM SHOULD NOT HAVE BEEN ADMITTED AS DYING DECLARATIONS BECAUSE THEY REFLECTED SPECULATION, NOT FACTS; WHETHER STATEMENTS ARE DYING DECLARATIONS IS NOT A JURY QUESTION.

The First Department, reversing defendants’ convictions, determined statements made by the shooting victim should not have been admitted as dying declarations because the statements reflected speculation, not facts. Whether the statements were admissible as dying declarations was not a question of fact for the jury. The defendants were not present at the shooting. The prosecution was based upon the theory the defendants hired the shooter:

… [W]e reverse the judgments and order a new trial because the court erred in admitting, as dying declarations, the victim’s statements implicating defendants, since they were his “mere expression of belief and suspici[ons]” that defendants were involved in his shooting rather than “statements of facts to which a living witness would have been permitted to testify, if placed upon the stand” … . Although the dying declarant may accuse his or her killer in conclusory language, “[t]he declaration is kept out if the setting of the occasion satisfies the judge, or in reason ought to satisfy him [or her], that the speaker is giving expression to suspicion or conjecture, and not to known facts” … .

… Contrary to the People’s argument, the question of what the victim was referring to when he implicated these defendants was not a proper jury question, nor did the lack of specificity merely go to the weight to be accorded this evidence.

The admission of the statements, which was over defendants’ timely and specific objection, was not harmless. Although some facts that may have led the victim to suspect that defendants were involved in his murder were part of the trial evidence, there was nothing to prevent the jury from speculating that the victim was privy to other information, outside the record, connecting defendants to the crime. We also note that the jury, which issued several deadlock notes during its very lengthy deliberations, twice requested to hear the dying declaration evidence. People v Gumbs, 2016 NY Slip Op 06424, 1st Dept 10-4-16

CRIMINAL LAW (STATEMENTS BY SHOOTING VICTIM SHOULD NOT HAVE BEEN ADMITTED AS DYING DECLARATIONS BECAUSE THEY REFLECTED SPECULATION, NOT FACTS; WHETHER STATEMENTS ARE DYING DECLARATIONS IS NOT A JURY QUESTION)/EVIDENCE (CRIMINAL LAW, STATEMENTS BY SHOOTING VICTIM SHOULD NOT HAVE BEEN ADMITTED AS DYING DECLARATIONS BECAUSE THEY REFLECTED SPECULATION, NOT FACTS; WHETHER STATEMENTS ARE DYING DECLARATIONS IS NOT A JURY QUESTION)/DYING DECLARATIONS (CRIMINAL LAW, (STATEMENTS BY SHOOTING VICTIM SHOULD NOT HAVE BEEN ADMITTED AS DYING DECLARATIONS BECAUSE THEY REFLECTED SPECULATION, NOT FACTS; WHETHER STATEMENTS ARE DYING DECLARATIONS IS NOT A JURY QUESTION)

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HEARING ON MOTION TO VACATE CONVICTION REQUIRED TO DETERMINE THE CREDIBILITY OF DEFENDANT’S CLAIM HE WOULD HAVE REJECTED THE PLEA BARGAIN HAD HE KNOWN OF THE RISK OF DEPORTATION.

The First Department determined defendant’s motion to vacate his conviction (by guilty plea), based upon defense counsel’s failure to advise defendant of the possibility of deportation, should not have been denied without a hearing. The decision includes a concise yet complete summary of the federal and state criteria for ineffective assistance and the burdens of proof re: a motion to vacate a conviction by plea. The court noted that credibility questions, here whether defendant’s claim he would have rejected the plea had he known of the risk of deportation, can only be resolved by a hearing:

The issue before us thus turns on whether counsel’s lack of advice on the deportation consequences of defendant’s guilty plea resulted in sufficient prejudice to warrant the withdrawal of his guilty plea. In order to prevail, a defendant must demonstrate a “reasonable probability that, [had counsel properly advised him of the implication of his plea on his immigration status], he would not have pleaded guilty and would have insisted on going to trial” … . … [D]efendant alleges that he would have gone to trial, despite its hazards and the potentially significant incarceration that a conviction would entail, had he been advised he would be deported. Although to have done so would have meant the rejection of “the very beneficial deal” his counsel had negotiated, the motion court erred in finding that defendant’s claim was not “credible,” given the length of time defendant resided legally in the United States, and the other factors raised in his motion papers. Such credibility determinations should be made only after a hearing … . People v Samuels, 2016 NY Slip Op 06423, 1st Dept 10-4-16

CRIMINAL LAW (HEARING ON MOTION TO VACATE CONVICTION REQUIRED TO DETERMINE THE CREDIBILITY OF DEFENDANT’S CLAIM HE WOULD HAVE REJECTED THE PLEA BARGAIN HAD HE KNOWN OF THE RISK OF DEPORTATION)/ATTORNEYS (INEFFECTIVE ASSISTANCE, HEARING ON MOTION TO VACATE CONVICTION REQUIRED TO DETERMINE THE CREDIBILITY OF DEFENDANT’S CLAIM HE WOULD HAVE REJECTED THE PLEA BARGAIN HAD HE KNOWN OF THE RISK OF DEPORTATION)/INEFFECTIVE ASSISTANCE (HEARING ON MOTION TO VACATE CONVICTION REQUIRED TO DETERMINE THE CREDIBILITY OF DEFENDANT’S CLAIM HE WOULD HAVE REJECTED THE PLEA BARGAIN HAD HE KNOWN OF THE RISK OF DEPORTATION)/EVIDENCE (CRIMINAL LAW, MOTION TO VACATE CONVICTION, HEARING ON MOTION TO VACATE CONVICTION REQUIRED TO DETERMINE THE CREDIBILITY OF DEFENDANT’S CLAIM HE WOULD HAVE REJECTED THE PLEA BARGAIN HAD HE KNOWN OF THE RISK OF DEPORTATION)/VACATE CONVICTION, MOTION TO (HEARING ON MOTION TO VACATE CONVICTION REQUIRED TO DETERMINE THE CREDIBILITY OF DEFENDANT’S CLAIM HE WOULD HAVE REJECTED THE PLEA BARGAIN HAD HE KNOWN OF THE RISK OF DEPORTATION)

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