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DEFENDANT WAS ENTITLED TO A HEARING ON WHETHER COUNSEL WAS INEFFECTIVE FOR FAILING TO INFORM HIM OF THE IMMIGRATION CONSEQUENCES OF HIS GUILITY PLEA AND FOR FAILING TO NEGOTIATE A PLEA TO AN OFFENSE WHICH DID NOT MANDATE DEPORTATION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant was entitled to a hearing on his motion to vacate his conviction by guilty plea on ineffective assistance ground. Defendant alleged counsel was ineffective (1) for failing to inform him deportation would be mandatory and (2) for not negotiating a plea to an offense which would not mandate deportation:

… [T]he defendant’s contention that his counsel misadvised him as to the immigration consequences of his plea of guilty is not contradicted by the record, and is arguably supported by the representations made by counsel on the record … , which suggest that counsel did not realize that the defenses to deportation which the defendant might have raised in immigration court would be barred by his plea. In any event, the record does not support a conclusion that there is “no reasonable possibility” that the defendant’s allegations are true (CPL 440.30[4][d] …). Furthermore, the defendant’s averments, including that he has resided in the United States since he was 16 years old, and that he had a child when he entered his plea of guilty, sufficiently demonstrate the existence of a question of fact as to whether it was reasonably probable that the defendant would not have entered a plea of guilty if he had been correctly advised of the deportation consequences of the plea … .

… [T]he defendant was entitled to a hearing on his contention that he was denied the effective assistance of counsel based upon his counsel’s failure to attempt to negotiate a more favorable plea. The defendant’s allegation that the People offered another plea which would not have constituted an aggravated felony under federal immigration law demonstrated “a reasonable possibility that his plea counsel could have secured a plea deal with less severe immigration consequences” … . People v Alexander, 2022 NY Slip Op 05215, Second Dept 9-21-22

Practice Point: Here defendant was entitled to a hearing on whether his attorney was ineffective for (1) failing to inform him deportation was mandatory for the offense to which he pled guilty and (2) failing to negotiate a plea to an offense which did not mandate deportation.

 

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FAMILY COURT SHOULD HAVE MADE THE FINDING THAT PETITIONER’S REUNIFICATION WITH HER FATHER IN THE IVORY COAST WAS NOT VIABLE TO ENABLE HER TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) AND REMAIN IN THE US (SECOND DEPT).

The First Department, reversing (modifying) Family Court, determined Family Court should have found reunification with petitioner’s father in the Ivory Coast was not viable. Petitioner, 16 years old, sought findings from Family Court which would allow her to apply for special immigrant juvenile status (SIJS) and remain in the United States:

Family Court erred in not making any findings of fact as to reunification with petitioner’s father. Exercising our power to review the record and to make our own factual determinations … , we find that the record supports a finding that reunification of petitioner with her father, respondent Lassina D., is not viable due to neglect within the meaning of Family Court Act § 1012 (f)(i) (A)—(B). Petitioner’s testimony shows that the father did not meet the minimal degree of care since he did not provide for her medical and emotional needs while she was in the Ivory Coast, and has not contributed to her financial support or maintained regular contact with her since she has been in the United States …  Her uncontroverted testimony also supports a finding of neglect based on the father’s excessive use of corporal punishment … .Matter of Sara D. v Lassina D., 2022 NY Slip Op 04119, First Dept 6-28-22

Practice Point: Family Court can be petitioned to make findings which will allow a juvenile to apply for special immigrant juvenile status in order to avoid deportation to the juvenile’s home country. Here the court was asked to make findings that reunification with the petitioner’s parents is not viable. The First Department found that father had neglected petitioner and she therefore could not be returned to his care.

 

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DEFENDANT DID NOT DEMONSTRATE CONVICTION OF THE B MISDEMEANORS WITH WHICH HE WAS CHARGED WOULD RESULT IN DEPORTATION; THEREFORE DEFENDANT WAS NOT ENTITLED TO A JURY TRIAL (CT APP).

The Court of Appeals, over an extensive two-judge dissent, determined that the defendant did not demonstrate the misdemeanors with which he was charged triggered a right to a jury trial because conviction would result in deportation:

Defendant was originally charged with public lewdness, two counts of forcible touching, and two counts of sexual abuse in the third degree after police officers observed him masturbating on a subway platform and pressing himself against two women on a subway car. The People thereafter filed a prosecutor’s information reducing the two class A misdemeanor charges of forcible touching to attempted forcible touching, so that the top charges against defendant were Class B misdemeanors obviating his right to a jury trial under state statute … . After a bench trial, defendant was convicted of public lewdness and acquitted of all other charges. …

While the Appellate Term first improperly conducted the deportability analysis based only on the crime of conviction, that court went on to correctly analyze defendant’s deportability based on all the charges he faced (see Suazo, 32 NY3d at 508). It remained, however, “the defendant’s burden to overcome the presumption that the crime charged is petty and establish a Sixth Amendment right to a jury trial” (id. at 507). … [D]efendant’s conclusory allegation that he was deportable if convicted “on any of the charged B misdemeanors,” supported by a bare citation to 8 USC § 1227 (a) (2) (A) (ii), under which an alien is deportable if “convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct,” was insufficient to establish his right to a jury trial. People v Garcia, 2022 NY Slip Op 03359, CtApp 5-24-22

Practice Point: Generally B misdemeanors do not warrant a jury, as opposed to a bench, trial. However, if conviction will result in deportation, the defendant has a right to a jury trial. Here the Court of Appeals held the defendant did not demonstrate conviction of the B misdemeanors with which he was charged triggered deportation.

 

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DESPITE THE STRENGTH OF THE EVIDENCE AGAINST HIM, DEFENDANT DEMONSTRATED A DECISION TO GO TO TRIAL WOULD HAVE BEEN RATIONALE BECAUSE OF HIS FAMILY OBLIGATIONS; DEFENDANT WAS ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS; DEFENDANT ALLEGED HIS ATTORNEY MISADVISED HIM ON THE DEPORTATION CONSEQUENCES OF A GUILTY PLEA (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined defendant should have been afforded a hearing on his motion to vacate his conviction on ineffective assistance grounds. Defendant alleged he was misadvised of the deportation consequence of his guilty plea.

… [N]either the fact that the defendant had previously been convicted of an offense that may subject him to removal, nor the seemingly strong evidence against him with respect to the instant offense, nor the favorable plea bargain he received, necessarily requires a finding that the defendant was not prejudiced by his counsel’s alleged misadvice … . The defendant’s averments, including that he has resided in the United States since he was 10 years old, that he is married to his spouse with whom he has two minor children, that his spouse is unable to work due to a medical condition, that he is gainfully employed, and that he is the sole source of financial support to his family, sufficiently alleged that a decision to reject the plea offer would have been rational … . People v Samaroo, 2022 NY Slip Op 03128, Second Dept 5-11-22

Practice Point: Even if the evidence of defendant’s commission of the crime is strong, a defendant may demonstrate a decision to go to trial, rather than accept a plea offer, would have been rationale based upon family obligations. Here defendant, who is a legal resident and has lived in the US since he was ten, has two minor children, is employed, and his wife can’t work because of medical problems. Defendant brought a motion to vacate his conviction (by guilty plea) on the ground his attorney did not inform him of the deportation consequences of the plea. Defendant was entitled to a hearing on his motion.

 

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FAMILY COURT SHOULD HAVE MADE FINDINGS TO ENABLE THE CHILD TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) SUCH THAT THE CHILD WOULD NOT BE RETURNED TO GUATEMALA (SECOND DEPT).

The Second Department, reversing Family Court, determined Family Court should have made findings to enable the child to petition for special immigrant juvenile status (SIJS) such that the child would not be returned to Guatemala:

… [A] special immigrant juvenile is a resident alien who … is under 21 years of age, unmarried, and dependent upon a juvenile court or legally committed to an individual appointed by a state or juvenile court. … [F]or a child to qualify for SIJS, a court must find that reunification of the child with one or both parents is not viable due to parental abuse, neglect, abandonment, or a similar basis found under state law … , and that it would not be in the child’s best interests to be returned to his or her country of nationality or country of last habitual residence … . …

The Family Court should have granted that branch of the child’s motion which was for a specific finding that reunification with his father is not viable due to parental neglect. Based upon our independent factual review, the record demonstrates that the child’s father physically and emotionally mistreated the child, and prevented him from attending school for more than one year and on other occasions without a reasonable justification, and that the child’s mother failed to protect him from such mistreatment. Thus, the record supports the requisite finding that reunification with the child’s father is not viable due to parental neglect … . Matter of Jose F. M. P. (Francisco D. M. G.), 2022 NY Slip Op 02414, Second Dept 4-13-22

 

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DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL; COUNSEL SAID A GUILTY PLEA MAY RESULT IN DEPORTATION WHEN DEPORTATION WAS MANDATORY (FIRST DEPT).

The First Department determined defendant did not receive effective assistance of counsel because he was told pleading guilty may result in deportation when deportation was mandatory:

The existing record sufficiently demonstrates that defendant was deprived of effective assistance of counsel (see Padilla v Kentucky, 559 US 356, 369, 374 [2010]) when his attorney failed to advise him that his guilty plea to a drug-related felony would result in mandatory deportation, and merely stated that “this may and probably will affect his immigration status” … . The appeal is held in abeyance to afford defendant the opportunity to move to vacate his plea upon a showing that there is a reasonable probability that he would not have pleaded guilty had he been made aware of the deportation consequences of his plea. People v Acosta, 2022 NY Slip Op 00737, First Dept 2-3-22

 

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THERE IS AN EXCEPTION TO THE PRESERVATION REQUIREMENT WHERE A DEFENDANT IS UNAWARE OF THE DEPORTATION CONSEQUENCES OF A GUILTY PLEA AND THEREFORE DID NOT MOVE TO WITHDRAW THE PLEA ON THAT GROUND (SECOND DEPT).

The Second Department, remitting the matter to give the defendant the opportunity to move to vacate his guilty plea on the ground he was not aware of the possibility of deportation. The court explained the relevant exception to the preservation requirement:

“Generally, in order to preserve a claim that a guilty plea is invalid, a defendant must move to withdraw the plea on the same grounds subsequently alleged on appeal or else file a motion to vacate the judgment of conviction pursuant to CPL 440.10” … . Thus, as relevant here, a defendant is ordinarily required to preserve the contention that his or her plea of guilty was not knowing, intelligent, and voluntary because the court failed to advise him or her that the plea could expose him or her to the risk of deportation … .

There is, however, a narrow exception to this general rule. Preservation is not required “where a defendant has no practical ability to object to an error in a plea allocution which is clear from the face of the record” … . The exception applies where the defendant is unaware of the possibility of deportation during the plea and sentencing proceedings, and, therefore, has no opportunity (as well as no motivation) to move to withdraw his or her plea based on the court’s failure to apprise him or her of that potential consequence … . A defendant, of course, “can hardly be expected to move to withdraw his [or her] plea on a ground of which he [or she] has no knowledge” … . People v Jones, 2021 NY Slip Op 06701, Second Dept 12-1-21

 

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DEFENDANT WAS NOT INFORMED HIS GUILTY PLEA COULD RESULT IN DEPORTATION; THE ISSUE NEED NOT BE PRESERVED FOR APPEAL; MATTER REMITTED TO GIVE DEFENDANT THE OPPORTUNITY TO MOVE TO WITHDRAW HIS GUILTY PLEA (SECOND DEPT).

The Second Department, remitting the matter to Supreme Court, determined defendant should be given the opportunity to withdraw his guilty plea because he was not informed of the possibility of deportation. The issue was not subject to the preservation requirement for appeal:

… [T]he defendant’s contention that his due process rights were violated due to the Supreme Court’s failure to warn him that his pleas could subject him to deportation is excepted from the requirement of preservation because the record does not demonstrate that the defendant was aware that he could be deported as a consequence of his pleas of guilty … . Indeed, here, the record shows that the court failed to address the possibility of deportation as a consequence of the defendant’s pleas of guilty … . Inasmuch as there is no indication in the record that the defendant was aware that he could be deported as a result of his pleas … , the defendant had no “practical ability” to object to the court’s comment about immigration consequences or to otherwise tell the court, if he chose, that he would not have pleaded guilty if he had known about the possibility of deportation … .

… [W]e remit the matters to the Supreme Court, Kings County, to afford the defendant an opportunity to move to vacate his pleas of guilty and for a report by the Supreme Court thereafter … . Any such motion shall be made by the defendant within 60 days after the date of this decision and order … . 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 warned him of the possibility of deportation … . People v Bamugo, 2021 NY Slip Op 06363, Second Dept 11-17,21

 

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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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