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DEFENDANT WAS ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION BY GUILTY PLEA ON INEFFECTIVE ASSISTANCE OF COUNSEL GROUNDS; DEFENDANT AVERRED HE WAS NOT INFORMED OF THE RISK OF DEPORTATION ASSOCIATED WITH THE PLEA (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant was entitled to a hearing on his motion to vacate his conviction on ineffective assistance grounds. Defendant averred that he was not informed of the risk of deportation associated with his guilty plea:

… [I]n the context of a plea of guilty, an attorney’s failure to advise a criminal defendant, or affirmative misadvice to the defendant, regarding the clear removal consequences of the plea constitutes deficient performance” … . In such cases, relief will depend upon whether the defendant can demonstrate prejudice as a result thereof … . …

… [T]he defendant avers that he was not advised of the immigration consequences of his pleas of guilty, and there is no evidence in the transcript of the extremely brief plea proceeding that defense counsel advised the defendant of such consequences. Moreover, the defendant’s averments, including that he has been in a long-term relationship with a United States citizen, with whom he has four children, sufficiently alleged that a decision to reject the plea offer, and take a chance, however slim, of being acquitted after trial, would have been rational … . People v Bernard, 2021 NY Slip Op 03601, Second Dept 6-9-21

 

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FAMILY COURT SHOULD HAVE MADE FINDINGS WHICH WOULD ALLOW THE CHILD TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SECOND DEPT).

The Second Department, reversing Family Court, determined the court should have made findings which would allow the subject child to apply for special immigrant juvenile states (SIJS);

The Family Court erred in failing to make the specific finding that reunification with the father is not viable due to abandonment. Based upon our independent factual review, the record supports the requisite finding that reunification with the child’s father is not viable due to parental abandonment … . The record demonstrates that even though the child’s father knew where he lived, the father never visited him. The child has never met his father, his father has never supported him and has never sent gifts or cards, and his father’s whereabouts are unknown.

Moreover, the record supports a finding that it would not be in the best interests of the child to be returned to Nicaragua, his previous country of nationality and last habitual residence, as there is no one to care for him or protect him in that country … . The record reflects that it would not be in the child’s best interests to return to Nicaragua as he would be separated from his mother who has consistently cared for and supported him. In Nicaragua, there is no one who can care for him or support him; as previously set forth, his father has abandoned him. The child’s maternal grandparents, with whom he lived after his mother left Nicaragua, are elderly and began to struggle to care for him and protect him. Moreover, the child faces harm from gang violence in Nicaragua, having been threatened by gang members and been kidnapped by them once for approximately eight days. Matter of Rosa M. M.-G. v Dimas A., 2021 NY Slip Op 03033, Second Dept 5-12-21

 

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APPEAL DISMISSED BECAUSE DEFENDANT WAS DEPORTED (SECOND DEPT).

The Second Department dismissed defendant’s appeal because he has been deported. The appeal can be reinstated if defendant returns to the court’s jurisdiction:

In People v Harrison (27 NY3d 281), the Court of Appeals reaffirmed its ruling that an intermediate appellate court retains its discretion to dismiss a pending permissive appeal due to a defendant’s involuntary deportation. Here, if this Court were to reverse the order appealed from, the defendant would be required to attend and participate in further proceedings in the Supreme Court, which he can no longer do. Accordingly, we grant the People’s motion and dismiss the appeal, without prejudice to a motion to reinstate the appeal should the defendant return to this Court’s jurisdiction … . People v Lopez, 2021 NY Slip Op 02546, Second Dept 4-28-21

 

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APPEAL HELD AND MATTER REMITTED TO ALLOW DEFENDANT TO MOVE TO VACATE HIS GUILTY PLEA ON THE GROUND HE WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES (SECOND DEPT).

The Second Department held the appeal in abeyance and remitted the matter to give defendant the opportunity to move the vacate his guilty plea on the ground he was not informed of the possibility he would be deported based on his plea:

“A defendant seeking to vacate a plea based on this failure must demonstrate that there is a ‘reasonable probability’ that he or she would not have entered a plea of guilty and would instead have gone to trial had the court warned of the possibility of deportation” … . Here, in the absence of the warning required under People v Peque (22 NY3d at 176), we remit the matter to the Supreme Court, Queens County, to afford the defendant an opportunity to move to vacate his plea, and thereafter for a report to this Court limited to the Supreme Court’s findings with respect to whether the defendant has moved to vacate his plea of guilty and whether he has established his entitlement to the withdrawal of his plea. Any such motion shall be made by the defendant within 60 days after the date of this decision and order, and, upon such motion, the defendant will have the burden of establishing that there is a “reasonable probability” that he would not have pleaded guilty had the court advised him of the possibility of deportation … . We hold the appeal in abeyance pending receipt of the Supreme Court’s report. We express no opinion as to the merits of the defendant’s motion, should he make one … . People v Torres, 2021 NY Slip Op 02424, Second Dept 4-21-21

 

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FAMILY COURT SHOULD HAVE APPOINTED PETITIONER GUARDIAN OF THE CHILD AND SHOULD HAVE MADE THE FINDINGS NECESSARY TO ALLOW THE CHILD TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS (SECOND DEPT).

The Second Department, reversing Family Court, determined petitioner should have been appointed guardian of the child and Family Court should have made the findings necessary for the child to petition for Special Immigrant Juvenile Status (SIJS):

Upon our independent factual review of the record, we find that the subject child’s best interests would be served by the appointment of the petitioner as his guardian … . …

… [T]he subject child is under the age of 21 and unmarried, and since we have appointed the petitioner as the subject child’s guardian, the subject child is dependent on a juvenile court within the meaning of 8 USC § 1101(a)(27)(J)(i) … . Further, based upon our independent factual review, the record supports a finding that reunification of the subject child with his father is not a viable option due to parental abandonment … . Lastly, the record reflects that it would not be in the subject child’s best interests to be returned to El Salvador, his previous country of nationality or country of last habitual residence … . Matter of Jose E. S. G., 2021 NY Slip Op 02294, Second Dept 4-14-21

 

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DEFENDANT DEMONSTRATED (1) HE WAS MISADVISED THAT HIS GUILTY PLEA WOULD NOT RESULT IN DEPORTATION AND (2), HAD HE BEEN PROPERLY ADVISED, A DECISION TO GO TO TRIAL WOULD HAVE BEEN RATIONAL; DEFENDANT’S MOTION TO VACATE HIS CONVICTION WAS PROPERLY GRANTED (SECOND DEPT).

The Second Department, affirming Supreme Court’s granting of defendant’s motion to vacate his conviction, determined defendant had demonstrated at the hearing he was misadvised that the contempt charge to which he pled guilty was not a deportable offense and that he would not have pled guilty but for that misadvice:

… [T]he record supported the Supreme Court’s determination that there was a reasonable probability that but for counsel’s misadvice, the defendant would not have pleaded guilty to criminal contempt in the second degree … . While the defendant did not testify at the hearing, defense counsel and the defendant’s former immigration counsel both testified to his being focused on the immigration consequences of his plea and his determination to plead guilty only after being incorrectly advised that a conviction of criminal contempt in the second degree would not render him deportable … . …

“[A]n evaluation of whether an individual in the defendant’s position could rationally reject a plea offer and proceed to trial must take into account the particular circumstances informing the defendant’s desire to remain in the United States. Those particular circumstances must then be weighed along with other relevant factors, such as the strength of the People’s evidence, the potential sentence, and the effect of prior convictions” … . The evidence elicited at the hearing established that the defendant had resided in the United States since 1988 and had five children, all citizens of the United States, whose care and well-being were priorities for him. Under the circumstances, notwithstanding the apparent strength of the People’s case against the defendant, we cannot say that a decision to face the risks of proceeding to trial, including the exposure to a harsher sentence, would not have been rational. People v Saunders, 2021 NY Slip Op 02181, Second Dept 4-7-21

 

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ALTHOUGH THE CO-DEFENDANT WAS SO INFORMED IN DEFENDANT’S PRESENCE, DEFENDANT WAS NOT DIRECTLY INFORMED OF THE POSSIBILITY OF DEPORTATION BY THE JUDGE; MATTER REMITTED TO GIVE DEFENDANT THE OPPORTUNITY TO MOVE TO WITHDRAW HIS GUILTY PLEA (SECOND DEPT).

The Second Department, remitting the matter to allow defendant to move to withdraw his guilty plea, determined, although the co-defendant, in defendant’s presence, was informed of the possibility of deportation based upon the plea, the defendant, who did not speak English, was not directly so informed by the judge:

During that proceeding, the court posed a question directly to “Mr. Vidalis,” asking if the codefendant understood that he could be deported if he entered a plea of guilty, to which the codefendant answered in the affirmative. The court then stated to the defendant, “Mr. Tapia; do you understand that?” The defendant answered in the affirmative. The court then individually asked the codefendant and the defendant if they had fully discussed “the immigration consequences of this case with your attorney,” to which the defendant answered in the affirmative. However, the court did not specifically instruct the defendant, who required a Spanish interpreter to understand the court and had only a sixth-grade education, that he could be deported if he entered a plea of guilty, nor did the court use the words “deported” or “deportation” in any statement posed directly to the defendant. * * *

… [W]hile the plea record demonstrates that the Supreme Court specifically advised the codefendant of the possibility that he could be deported as a consequence of his plea, the court, in addressing the defendant, simply asked, “Mr. Tapia; do you understand that?” … . In light of the defendant’s limited education and need for a Spanish interpreter to understand the court’s remarks, the court’s limited inquiry as to whether the defendant understood “that” did not ensure the defendant’s understanding that he could be deported as a consequence of his own plea, as opposed to his mere recognition that the codefendant faced deportation consequences … . People v Tapia, 2021 NY Slip Op 01274, Second Dept 3-3-21

 

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FAMILY COURT SHOULD HAVE MADE FINDINGS WHICH WOULD ALLOW THE CHILDREN TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined Family Court should have made findings which would allow the children to petition for special immigrant juvenile state (SIJS):

… [B]ased upon our independent factual review, the record supports a finding that reunification of the children with their father is not viable due to the father’s abandonment of the children …., and educational neglect of the child … . Further, the record supports a finding that it would not be in the best interests of the children to return to Guatemala, their previous country of nationality or country of last habitual residence … . Matter of Briceyda M. A. X. (Hugo R. A. O.–Maria H. X. C.), 2021 NY Slip Op 00180, Second Dept 1-13-21

 

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UPWARD DEPARTURE SUPPORTED BY EVIDENCE DEFENDANT COMMITTED RAPE TO TAKE REVENGE UPON SOMEONE OTHER THAN THE VICTIM; THE FACT DEFENDANT HAD BEEN DEPORTED DID NOT RENDER THE APPEAL MOOT (CT APP).

The Court of Appeals, in a brief memorandum decision, upheld the Appellate Division’s finding that the upward departure was justified because it was based on a risk factor not addressed the Sex Offender Registration Act (SORA) Guidelines. The court noted that the fact defendant had been deported did not render the appeal moot:

Under the circumstances presented here, we reject the People’s argument that defendant’s appeal is rendered moot by his deportation … . On the merits, we conclude that it was not an abuse of discretion for the Appellate Division to sustain the upward departure based on the People’s proof that defendant raped the victim in order to take revenge upon someone other than the victim—a risk factor not adequately captured by the Guidelines. People v Rosario, 2020 NY Slip Op 07688, CtApp 12-22-20

 

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CLAIMANT, AN UNDOCUMENTED IMMIGRANT WITHOUT A SOCIAL SECURITY NUMBER, DEMONSTRATED DILIGENT EFFORTS TO FIND WORK AFTER HE WAS INJURED; THE WORKERS’ COMPENSATION BOARD SHOULD NOT HAVE DENIED HIS CLAIM FOR BENEFITS (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board’s denial of benefits to claimant, an undocumented immigrant, over a two-justice dissent, determined claimant had made a sufficient showing of diligent efforts to find work (labor market attachment) after he was injured:

… “[T]he status of an injured worker as an undocumented alien does not, in and of itself, prohibit an award of workers’ compensation benefits” … , unless the worker cannot satisfy statutory requirements … . Likewise, the Board has recognized that an injured worker’s undocumented status “does not eliminate his [or her] need to make a reasonable search for work” … . …

The evidence at the hearing established that claimant attended school through the ninth grade in his country of birth and has exclusively worked in construction, both before coming to the United States at age 23 and for the eight years thereafter, until sustaining the subject injuries while performing heavy lifting at the employer’s construction site. With respect to his attachment to the labor market, claimant submitted completed forms listing 62 businesses to which he applied for work between April and December 2018 as a prep cook, dishwasher, restaurant helper and ironing worker. He identified potential employers by walking around two boroughs of New York City two or three days per week, seeking work that would not require a Social Security number, which he lacked due to his undocumented status. He applied for both non-construction jobs, for which he lacked experience and language skills, and construction jobs, for which he had limited physical abilities due to his injuries. Potential employers informed claimant that (1) they were not hiring, (2) he lacked the requisite experience or (3) they could not hire him without a Social Security number. Claimant produced documentation establishing that he sought assistance from Workforce1, a job location service, which aided him in the preparation of a work-history rÉsumÉ in English; however, despite his willingness to use this service, Workforce1 ultimately advised him that he was unable to use its services for his job search because he lacked a Social Security number. Claimant registered at an adult learning center in order to take English language courses, but was placed on a wait list and, as of the time of the hearing, had yet to be contacted regarding an opening. Matter of Policarpio v Rally Restoration Corp., 2020 NY Slip Op 07442, Third Dept 12-10-20

 

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