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EVEN THOUGH DEFENDANT WAS NOT ENTITLED TO A JURY TRIAL BECAUSE THE CHARGES WERE B MISDEMEANORS, THE FACT THAT DEPORTATION WAS A POTENTIAL PENALTY ENTITLED DEFENDANT TO A JURY TRIAL PURSUANT TO THE SIXTH AMENDMENT (CT APP).

The Court of Appeals, reversing the appellate division, in a full-fledged opinion by Judge Stein, over two separate dissenting opinions, determined that the potential penalty of deportation entitles a defendant to a jury trial, even if, as here, the charges are B misdemeanors which are triable without a jury pursuant to Criminal Procedure Law 340.40:

The Sixth Amendment of the United States Constitution guarantees that a defendant will be judged by a jury of peers if charged with a serious crime. Today, as a matter of first impression, we hold that a noncitizen defendant who demonstrates that a charged crime carries the potential penalty of deportation—i.e. removal from the country—is entitled to a jury trial under the Sixth Amendment. * * *

Defendant argues that, although the Sixth Amendment right to a jury trial did not automatically attach to the crimes with which he was charged because they are punishable by less than a six-month term of incarceration, he met his burden of establishing that the crimes carry an additional penalty beyond incarceration—namely, deportation—which he contends is a sufficiently severe penalty to rebut the presumption that the crimes are petty for Sixth Amendment purposes. We agree. People v Suazo, 2018 NY Slip Op 08056, CtApp 11-27-18

CRIMINAL LAW (JURY TRIALS, EVEN THOUGH DEFENDANT WAS NOT ENTITLED TO A JURY TRIAL BECAUSE THE CHARGES WERE B MISDEMEANORS, THE FACT THAT DEPORTATION WAS A POTENTIAL PENALTY ENTITLED DEFENDANT TO A JURY TRIAL PURSUANT TO THE SIXTH AMENDMENT (CT APP))/JURY TRIALS (CRIMINAL LAW,  EVEN THOUGH DEFENDANT WAS NOT ENTITLED TO A JURY TRIAL BECAUSE THE CHARGES WERE B MISDEMEANORS, THE FACT THAT DEPORTATION WAS A POTENTIAL PENALTY ENTITLED DEFENDANT TO A JURY TRIAL PURSUANT TO THE SIXTH AMENDMENT (CT APP))/CONSTITUTIONAL LAW (CRIMINAL LAW, JURY TRIALS, EVEN THOUGH DEFENDANT WAS NOT ENTITLED TO A JURY TRIAL BECAUSE THE CHARGES WERE B MISDEMEANORS, THE FACT THAT DEPORTATION WAS A POTENTIAL PENALTY ENTITLED DEFENDANT TO A JURY TRIAL PURSUANT TO THE SIXTH AMENDMENT (CT APP))/IMMIGRATION LAW (CRIMINAL LAW, JURY TRIALS, EVEN THOUGH DEFENDANT WAS NOT ENTITLED TO A JURY TRIAL BECAUSE THE CHARGES WERE B MISDEMEANORS, THE FACT THAT DEPORTATION WAS A POTENTIAL PENALTY ENTITLED DEFENDANT TO A JURY TRIAL PURSUANT TO THE SIXTH AMENDMENT (CT APP))

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DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, DEFENDANT ALLEGED HE WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS MARIJUANA CONVICTION (THIRD DEPT).

The Third Department, reversing County Court, determined that defendant was entitled to a hearing on his motion to vacate his conviction on ineffective assistance grounds. Defendant’s affidavit raised sufficient factual questions which could not be answered from the record to warrant a hearing. Defendant alleged he was not informed of the deportation consequences of the marijuana conviction:

“Although a hearing on a CPL 440.10 motion is not always necessary, a hearing is required where the defendant bases the motion upon nonrecord facts that are material and, if established, would entitle the defendant to relief”… . In support of his motion to vacate the judgment of conviction, defendant tendered his own affidavit, wherein he asserted that he had completed his prison sentence and period of postrelease supervision and that he was being held at a federal detention facility pending deportation proceedings. He stated that trial counsel failed to inform him of the immigration consequences of being convicted as charged and that, had he been so informed, he would have asked trial counsel “to explore the possibility of a plea bargain rather than take the case to trial, even though [he] continued to maintain [his] innocence.” He further stated that trial counsel’s failure to present him with any plea offer, or to inform him of potential deportation consequences, “caused [him] to forgo any discussion of a plea bargain.” People v Blackman, 2018 NY Slip Op 07982, Third Dept 11-21-18

CRIMINAL LAW (DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, DEFENDANT ALLEGED HE WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS MARIJUANA CONVICTION (THIRD DEPT))/IMMIGRATION LAW (CRIMINAL LAW, DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, DEFENDANT ALLEGED HE WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS MARIJUANA CONVICTION (THIRD DEPT))/DEPORTATION (CRIMINAL LAW, DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, DEFENDANT ALLEGED HE WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS MARIJUANA CONVICTION (THIRD DEPT))/ATTORNEYS (CRIMINAL LAW, DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, DEFENDANT ALLEGED HE WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS MARIJUANA CONVICTION (THIRD DEPT))/INEFFECTIVE ASSISTANCE  (DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, DEFENDANT ALLEGED HE WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS MARIJUANA CONVICTION (THIRD DEPT))/VACATE CONVICTION, MOTION TO  (DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, DEFENDANT ALLEGED HE WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES OF HIS MARIJUANA CONVICTION (THIRD DEPT))

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STATE AND LOCAL LAW ENFORCEMENT OFFICERS ARE NOT AUTHORIZED TO EFFECT CIVIL ADMINISTRATIVE ARRESTS PURSUANT TO ICE DETAINERS, IMMIGRATION LAW VIOLATIONS ARE NOT CRIMES, HABEAS CORPUS PETITION GRANTED TO FRANCES, A CITIZEN OF INDIA WHO WAS HELD IN A COUNTY JAIL OSTENSIBLY PURSUANT TO AN ICE DETAINER, EVEN THOUGH FRANCES IS NO LONGER IN THE CUSTODY OF THE COUNTY, THE PETITIONER’S CIRCUMSTANCE IS LIKELY TO RECUR AND THE APPEAL WAS CONSIDERED AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (SECOND DEPT).

The Second Department, in a comprehensive opinion by Justice Scheinkman, considering a matter of first impression, determined state and local law enforcement officers are not authorized to effect civil immigration arrests in connection with ICE [Immigration and Customs Enforcement] detainers. The matter came before the court as a habeas corpus petition. The petition alleged that the continued detention (in county jail) of Frances, a citizen of India who had been in the US since his visa expired in 1996, after his criminal sentence was complete, was illegal. Although Frances was in ICE custody at the time of the appeal, Frances’s circumstance was deemed likely to recur and the appeal was therefore heard as an exception to the mootness doctrine:

Following the conclusion of his court proceeding, at which he was sentenced to time served, [Frances] was handcuffed and taken to a courthouse holding cell by members of the Sheriff’s Office …  . … [B]ased on the ICE warrant, … Francis was regarded by the Sheriff as being in the custody of ICE. Francis was placed in a jail cell rented by ICE. * * *

Illegal presence in the country, standing alone, is not a crime… ; it is a civil violation that subjects the individual to removal … . The federal process for removing someone from the country is a civil administrative matter, not a criminal one … . * * *

New York statutes do not authorize state and local law enforcement to effectuate warrantless arrests for civil immigration law violations. An arrest without a warrant is permitted where an individual “has committed or is believed to have committed an offense and who is at liberty within the state” under certain circumstances prescribed by statute (CPL 140.05). County sheriffs and their deputies are police officers (see CPL 1.20[34]), as are members of the state police, county police, and municipal police. * * *

The narrow issue in this case is whether New York law permits New York state and local law enforcement officers to effectuate civil immigration arrests, and not whether federal civil immigration officers have the authority to effectuate such arrests. Nor do we decide any issues under federal law deputizing state and local law enforcement officers to act as federal immigration officers. … [W]e conclude that the Sheriff’s policy … directing the retention of prisoners, who would otherwise be released, pursuant to ICE detainers and administrative warrants is unlawful … . People ex rel. Wells v DeMarco, 2018 NY Slip Op 07740, Second Dept 11-14-18

IMMIGRATION LAW (STATE AND LOCAL LAW ENFORCEMENT OFFICERS ARE NOT AUTHORIZED TO EFFECT CIVIL ADMINISTRATIVE ARRESTS PURSUANT TO ICE DETAINERS, HABEAS CORPUS PETITION GRANTED TO FRANCES, A CITIZEN OF INDIA WHO WAS HELD IN A COUNTY JAIL OSTENSIBLY PURSUANT TO AN ICE DETAINER, EVEN THOUGH FRANCES IS NO LONGER IN THE CUSTODY OF THE COUNTY, THE PETITIONER’S CIRCUMSTANCE IS LIKELY TO RECUR AND THE APPEAL WAS CONSIDERED AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (SECOND DEPT))/MUNICIPAL LAW (IMMIGRATION LAW, STATE AND LOCAL LAW ENFORCEMENT OFFICERS ARE NOT AUTHORIZED TO EFFECT CIVIL ADMINISTRATIVE ARRESTS PURSUANT TO ICE DETAINERS, HABEAS CORPUS PETITION GRANTED TO FRANCES, A CITIZEN OF INDIA WHO WAS HELD IN A COUNTY JAIL OSTENSIBLY PURSUANT TO AN ICE DETAINER, EVEN THOUGH FRANCES IS NO LONGER IN THE CUSTODY OF THE COUNTY, THE PETITIONER’S CIRCUMSTANCE IS LIKELY TO RECUR AND THE APPEAL WAS CONSIDERED AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (SECOND DEPT))/APPEALS (IMMIGRATION LAW, STATE AND LOCAL LAW ENFORCEMENT OFFICERS ARE NOT AUTHORIZED TO EFFECT CIVIL ADMINISTRATIVE ARRESTS PURSUANT TO ICE DETAINERS, HABEAS CORPUS PETITION GRANTED TO FRANCES, A CITIZEN OF INDIA WHO WAS HELD IN A COUNTY JAIL OSTENSIBLY PURSUANT TO AN ICE DETAINER, EVEN THOUGH FRANCES IS NO LONGER IN THE CUSTODY OF THE COUNTY, THE PETITIONER’S CIRCUMSTANCE IS LIKELY TO RECUR AND THE APPEAL WAS CONSIDERED AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (SECOND DEPT))/MOOTNESS DOCTRINE (APPEALS, STATE AND LOCAL LAW ENFORCEMENT OFFICERS ARE NOT AUTHORIZED TO EFFECT CIVIL ADMINISTRATIVE ARRESTS PURSUANT TO ICE DETAINERS, HABEAS CORPUS PETITION GRANTED TO FRANCES, A CITIZEN OF INDIA WHO WAS HELD IN A COUNTY JAIL OSTENSIBLY PURSUANT TO AN ICE DETAINER, EVEN THOUGH FRANCES IS NO LONGER IN THE CUSTODY OF THE COUNTY, THE PETITIONER’S CIRCUMSTANCE IS LIKELY TO RECUR AND THE APPEAL WAS CONSIDERED AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (SECOND DEPT))/IMMIGRATION AND CUSTOMS ENFORCEMENT (STATE AND LOCAL LAW ENFORCEMENT OFFICERS ARE NOT AUTHORIZED TO EFFECT CIVIL ADMINISTRATIVE ARRESTS PURSUANT TO ICE DETAINERS, HABEAS CORPUS PETITION GRANTED TO FRANCES, A CITIZEN OF INDIA WHO WAS HELD IN A COUNTY JAIL OSTENSIBLY PURSUANT TO AN ICE DETAINER, EVEN THOUGH FRANCES IS NO LONGER IN THE CUSTODY OF THE COUNTY, THE PETITIONER’S CIRCUMSTANCE IS LIKELY TO RECUR AND THE APPEAL WAS CONSIDERED AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (SECOND DEPT))/ICE (STATE AND LOCAL LAW ENFORCEMENT OFFICERS ARE NOT AUTHORIZED TO EFFECT CIVIL ADMINISTRATIVE ARRESTS PURSUANT TO ICE DETAINERS, HABEAS CORPUS PETITION GRANTED TO FRANCES, A CITIZEN OF INDIA WHO WAS HELD IN A COUNTY JAIL OSTENSIBLY PURSUANT TO AN ICE DETAINER, EVEN THOUGH FRANCES IS NO LONGER IN THE CUSTODY OF THE COUNTY, THE PETITIONER’S CIRCUMSTANCE IS LIKELY TO RECUR AND THE APPEAL WAS CONSIDERED AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (SECOND DEPT))/DETAINERS (ICE, STATE AND LOCAL LAW ENFORCEMENT OFFICERS ARE NOT AUTHORIZED TO EFFECT CIVIL ADMINISTRATIVE ARRESTS PURSUANT TO ICE DETAINERS, HABEAS CORPUS PETITION GRANTED TO FRANCES, A CITIZEN OF INDIA WHO WAS HELD IN A COUNTY JAIL OSTENSIBLY PURSUANT TO AN ICE DETAINER, EVEN THOUGH FRANCES IS NO LONGER IN THE CUSTODY OF THE COUNTY, THE PETITIONER’S CIRCUMSTANCE IS LIKELY TO RECUR AND THE APPEAL WAS CONSIDERED AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (SECOND DEPT))/CIVIL IMMIGRATION ARRESTS  (STATE AND LOCAL LAW ENFORCEMENT OFFICERS ARE NOT AUTHORIZED TO EFFECT CIVIL ADMINISTRATIVE ARRESTS PURSUANT TO ICE DETAINERS, HABEAS CORPUS PETITION GRANTED TO FRANCES, A CITIZEN OF INDIA WHO WAS HELD IN A COUNTY JAIL OSTENSIBLY PURSUANT TO AN ICE DETAINER, EVEN THOUGH FRANCES IS NO LONGER IN THE CUSTODY OF THE COUNTY, THE PETITIONER’S CIRCUMSTANCE IS LIKELY TO RECUR AND THE APPEAL WAS CONSIDERED AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (SECOND DEPT))/CRIMINAL LAW (IMMIGRATION LAW VIOLATIONS ARE NOT CRIMES, STATE AND LOCAL LAW ENFORCEMENT OFFICERS ARE NOT AUTHORIZED TO EFFECT CIVIL ADMINISTRATIVE ARRESTS PURSUANT TO ICE DETAINERS, HABEAS CORPUS PETITION GRANTED TO FRANCES, A CITIZEN OF INDIA WHO WAS HELD IN A COUNTY JAIL OSTENSIBLY PURSUANT TO AN ICE DETAINER, EVEN THOUGH FRANCES IS NO LONGER IN THE CUSTODY OF THE COUNTY, THE PETITIONER’S CIRCUMSTANCE IS LIKELY TO RECUR AND THE APPEAL WAS CONSIDERED AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (SECOND DEPT))

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DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL CONCERNING THE POSSIBILITY OF DEPORTATION BASED UPON HIS GUILTY PLEA, MOTION TO WITHDRAW THE PLEA GRANTED (SECOND DEPT).

The Second Department, granting defendant’s motion to withdraw his guilty plea, determined defense counsel did not provide effective assistance on whether the guilty plea would result in deportation and there was a reasonable probability defendant would not have pled guilty had he been correctly informed. Defense counsel told the court that defendant was going to be deported based upon a prior offense, but the facts indicated otherwise:

The defendant, through his new counsel, subsequently made a timely motion to withdraw his plea, which was summarily denied by the County Court. Upon remittal from this Court, the County Court held a proceeding pursuant to People v Tinsley (35 NY2d 926) and, upon questioning the defendant, determined that he had not received effective assistance of counsel at the time of the plea. We discern no basis in the record to disturb the County Court’s findings in this regard.

In order for the defendant to obtain vacatur of his plea of guilty based on Padilla v Kentucky (559 US 356), he must establish that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial  … . Although the County Court did not specifically address this question in its report, the record is sufficient for us to conclude that, but for counsel’s errors, there is a reasonable probability that the defendant—who has lived in the United States since the age of four and has significant family ties here, including a wife and three children, as well as parents and siblings—would not have pleaded guilty … . People v Ghingoree, 2018 NY Slip Op 07748, Second Dept 11-14-18

CRIMINAL LAW (INEFFECTIVE ASSISTANCE, IMMIGRATION LAW, DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL CONCERNING THE POSSIBILITY OF DEPORTATION BASED UPON HIS GUILTY PLEA, MOTION TO WITHDRAW THE PLEA GRANTED (SECOND DEPT))/ATTORNEYS, CRIMINAL LAW, DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL CONCERNING THE POSSIBILITY OF DEPORTATION BASED UPON HIS GUILTY PLEA, MOTION TO WITHDRAW THE PLEA GRANTED (SECOND DEPT))/INEFFECTIVE ASSISTANCE (CRIMINAL LAW, DEPORTATION, DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL CONCERNING THE POSSIBILITY OF DEPORTATION BASED UPON HIS GUILTY PLEA, MOTION TO WITHDRAW THE PLEA GRANTED (SECOND DEPT))/IMMIGRATION LAW (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, DEPORTATION, DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL CONCERNING THE POSSIBILITY OF DEPORTATION BASED UPON HIS GUILTY PLEA, MOTION TO WITHDRAW THE PLEA GRANTED (SECOND DEPT))/GUILTY PLEA, MOTION TO WITHDRAW (INEFFECTIVE ASSISTANCE, IMMIGRATION LAW, DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL CONCERNING THE POSSIBILITY OF DEPORTATION BASED UPON HIS GUILTY PLEA, MOTION TO WITHDRAW THE PLEA GRANTED (SECOND DEPT))/DEPORTATION (CRIMINAL LAW, INEFFECTIVE ASSISTANCE,  DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL CONCERNING THE POSSIBILITY OF DEPORTATION BASED UPON HIS GUILTY PLEA, MOTION TO WITHDRAW THE PLEA GRANTED (SECOND DEPT))

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FAMILY COURT SHOULD AMEND ITS ORDER GRANTING A SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) PETITION TO ADDRESS THE REASONS FOR THE REVOCATION OF THE PETITION BY THE US CITIZENSHIP AND IMMIGRATION SERVICES (SECOND DEPT).

The Second Department, reversing Family Court, determined that Family Court should amend its Special Immigrant Juvenile Status (SIJS) order to address the reasons for the revocation of the initial approval of the petition by the US Citizenship and Immigration Services (USCIS):

The child moved for the issuance of an order making the requisite declaration and specific findings so as to enable him to petition for SIJS. … [T]he Family Court granted the child’s motion.

Thereafter, the child submitted an I-360 petition for SIJS to USCIS. Although the I-360 petition was initially approved, USCIS thereafter advised the child of its intention to “revoke the approval” based upon certain deficiencies in the special findings order. The child then moved to amend the special findings order to address the deficiencies, and the father joined in the motion. In an order dated February 26, 2018, the Family Court denied the motion to amend the special findings order. …

Under the circumstances presented, we deem it appropriate to amend the special findings order to clarify that the basis for the Family Court’s exercise of jurisdiction over this custody proceeding is under New York State law pursuant to Family Court Act § 651(a). We also deem it appropriate to amend the special findings order to specify that it would not be in the best interests of the child to be returned to El Salvador because the mother is unable to protect the child from harm by gang members in El Salvador, who have made threats of violence against him … . Matter of Argueta v Santos, 2018 NY Slip Op 07424, Second Dept 11-7-18

FAMILY LAW (SPECIAL IMMIGRANT JUVENILE STATUS, FAMILY COURT SHOULD AMEND ITS ORDER GRANTING A SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) PETITION TO ADDRESS THE REASONS FOR THE REVOCATION OF THE PETITION BY THE US CITIZENSHIP AND IMMIGRATION SERVICES (SECOND DEPT))/IMMIGRATION LAW (FAMILY LAW, SPECIAL IMMIGRANT JUVENILE STATUS, FAMILY COURT SHOULD AMEND ITS ORDER GRANTING A SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) PETITION TO ADDRESS THE REASONS FOR THE REVOCATION OF THE PETITION BY THE US CITIZENSHIP AND IMMIGRATION SERVICES (SECOND DEPT))/SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (FAMILY COURT SHOULD AMEND ITS ORDER GRANTING A SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) PETITION TO ADDRESS THE REASONS FOR THE REVOCATION OF THE PETITION BY THE US CITIZENSHIP AND IMMIGRATION SERVICES (SECOND DEPT))

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DEFENDANT’S MOTION TO VACATE HIS CONVICTION BY GUILTY PLEA SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, THE PAPERS SUFFICIENTLY RAISED THE QUESTION WHETHER DEFENSE COUNSEL FAILED TO INFORM DEFENDANT OF THE DEPORTATION CONSEQUENCES OF THE PLEA AND WHETHER THAT FAILURE AMOUNTED TO INEFFECTIVE ASSISTANCE UNDER THE FEDERAL STANDARD, THE ARGUMENT THAT THE COURT FAILED TO INFORM DEFENDANT OF THE DEPORTATION CONSEQUENCES WAS REJECTED BECAUSE THERE WAS A SUFFICIENT RECORD TO HAVE RAISED THAT ARGUMENT ON APPEAL (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to vacate his conviction by guilty plea should not have been denied without a hearing. Defendant alleged he was incorrectly told by his attorney that he would not be deported as a result of the plea. Defendant’s papers were sufficient to raise a question whether defendant was afforded effective assistance of counsel under the federal standard (which is explained in the decision). The court noted that the claim defendant was not informed of the risk of deportation at sentencing was properly rejected because there was a sufficient record to have raised that argument on appeal:

Under the federal standard for asserting a claim of ineffective assistance of counsel, a defendant “must show that counsel’s representation fell below an objective standard of reasonableness” and “that the deficient performance prejudiced the defense” … . Although Padilla v Kentucky (559 US 356) is inapplicable to this case because the defendant’s conviction became final before Padilla was decided  … , even prior to Padilla, the Court of Appeals had held that “inaccurate advice about a guilty plea’s immigration consequences” fell below an objective standard of reasonableness, so as to satisfy the first prong of the standard set forth in Strickland [466 US 668].

Here, the defendant alleged that his counsel incorrectly advised him that he would not be subject to deportation as a consequence of his plea of guilty to reckless endangerment in the first degree. The defendant affirmed that he was initially offered a plea agreement that included a period of incarceration and carried the risk of deportation and, in consultation with his counsel, the defendant rejected that plea offer because of the deportation risks. It was only after a second plea offer was made, for a length of probation conditioned upon the successful completion of a program, along with the representation that such a plea would not result in the defendant’s deportation, that the defendant chose to plead guilty. …

In addition to demonstrating that defense counsel’s performance was deficient, a defendant making a federal constitutional claim must also show, in order to satisfy the second prong of the Strickland standard, that there was ” a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial'” … .

Here, the defendant’s affidavit raised sufficient questions of fact as to whether it was reasonably probable that he would not have pleaded guilty had he been correctly advised as to the deportation consequences of the plea, given the fact that the defendant had already once rejected a plea offer that was objectively favorable to him, in favor of going to trial, because of the risk of deportation, and based upon his specific affirmation that, had he known the risk of deportation, he would not have pleaded guilty … . People v Malik, 2018 NY Slip Op 07452, Second Dept 11-7-18

CRIMINAL LAW (DEFENDANT’S MOTION TO VACATE HIS CONVICTION BY GUILTY PLEA SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, THE PAPERS SUFFICIENTLY RAISED THE QUESTION WHETHER DEFENSE COUNSEL FAILED TO INFORM DEFENDANT OF THE DEPORTATION CONSEQUENCES OF THE PLEA AND WHETHER THAT FAILURE AMOUNTED TO INEFFECTIVE ASSISTANCE UNDER THE FEDERAL STANDARD, THE ARGUMENT THAT THE COURT FAILED TO INFORM DEFENDANT OF THE DEPORTATION CONSEQUENCES WAS REJECTED BECAUSE THERE WAS A SUFFICIENT RECORD TO HAVE RAISED THAT ARGUMENT ON APPEAL (SECOND DEPT))/ATTORNEYS (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, DEFENDANT’S MOTION TO VACATE HIS CONVICTION BY GUILTY PLEA SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, THE PAPERS SUFFICIENTLY RAISED THE QUESTION WHETHER DEFENSE COUNSEL FAILED TO INFORM DEFENDANT OF THE DEPORTATION CONSEQUENCES OF THE PLEA AND WHETHER THAT FAILURE AMOUNTED TO INEFFECTIVE ASSISTANCE UNDER THE FEDERAL STANDARD, THE ARGUMENT THAT THE COURT FAILED TO INFORM DEFENDANT OF THE DEPORTATION CONSEQUENCES WAS REJECTED BECAUSE THERE WAS A SUFFICIENT RECORD TO HAVE RAISED THAT ARGUMENT ON APPEAL (SECOND DEPT))/APPEALS (CRIMINAL LAW, DEFENDANT’S MOTION TO VACATE HIS CONVICTION BY GUILTY PLEA SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, THE PAPERS SUFFICIENTLY RAISED THE QUESTION WHETHER DEFENSE COUNSEL FAILED TO INFORM DEFENDANT OF THE DEPORTATION CONSEQUENCES OF THE PLEA AND WHETHER THAT FAILURE AMOUNTED TO INEFFECTIVE ASSISTANCE UNDER THE FEDERAL STANDARD, THE ARGUMENT THAT THE COURT FAILED TO INFORM DEFENDANT OF THE DEPORTATION CONSEQUENCES WAS REJECTED BECAUSE THERE WAS A SUFFICIENT RECORD TO HAVE RAISED THAT ARGUMENT ON APPEAL (SECOND DEPT))/IMMIGRATION LAW (CRIMINAL LAW, (DEFENDANT’S MOTION TO VACATE HIS CONVICTION BY GUILTY PLEA SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, THE PAPERS SUFFICIENTLY RAISED THE QUESTION WHETHER DEFENSE COUNSEL FAILED TO INFORM DEFENDANT OF THE DEPORTATION CONSEQUENCES OF THE PLEA AND WHETHER THAT FAILURE AMOUNTED TO INEFFECTIVE ASSISTANCE UNDER THE FEDERAL STANDARD, THE ARGUMENT THAT THE COURT FAILED TO INFORM DEFENDANT OF THE DEPORTATION CONSEQUENCES WAS REJECTED BECAUSE THERE WAS A SUFFICIENT RECORD TO HAVE RAISED THAT ARGUMENT ON APPEAL (SECOND DEPT))/DEPORTATION (CRIMINAL LAW, (DEFENDANT’S MOTION TO VACATE HIS CONVICTION BY GUILTY PLEA SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, THE PAPERS SUFFICIENTLY RAISED THE QUESTION WHETHER DEFENSE COUNSEL FAILED TO INFORM DEFENDANT OF THE DEPORTATION CONSEQUENCES OF THE PLEA AND WHETHER THAT FAILURE AMOUNTED TO INEFFECTIVE ASSISTANCE UNDER THE FEDERAL STANDARD, THE ARGUMENT THAT THE COURT FAILED TO INFORM DEFENDANT OF THE DEPORTATION CONSEQUENCES WAS REJECTED BECAUSE THERE WAS A SUFFICIENT RECORD TO HAVE RAISED THAT ARGUMENT ON APPEAL (SECOND DEPT))/VACATE CONVICTION, MOTION TO  (DEFENDANT’S MOTION TO VACATE HIS CONVICTION BY GUILTY PLEA SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, THE PAPERS SUFFICIENTLY RAISED THE QUESTION WHETHER DEFENSE COUNSEL FAILED TO INFORM DEFENDANT OF THE DEPORTATION CONSEQUENCES OF THE PLEA AND WHETHER THAT FAILURE AMOUNTED TO INEFFECTIVE ASSISTANCE UNDER THE FEDERAL STANDARD, THE ARGUMENT THAT THE COURT FAILED TO INFORM DEFENDANT OF THE DEPORTATION CONSEQUENCES WAS REJECTED BECAUSE THERE WAS A SUFFICIENT RECORD TO HAVE RAISED THAT ARGUMENT ON APPEAL (SECOND DEPT))

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DEFENDANT WAS TOLD MERELY THAT DEPORTATION WAS A PROBABILITY WHEN IT WAS MANDATORY, HE IS ENTITLED TO MOVE TO VACATE HIS GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (FIRST DEPT).

The First Department determined that defendant should be given the opportunity to move to vacate his guilty plea on ineffective assistance grounds. Although deportation was mandatory, defendant was told only that he may be deported:

Defendant was deprived of effective assistance of counsel when his counsel failed to advise him that his guilty plea to an aggravated felony would result in mandatory deportation, and instead merely advised him that his plea would have “immigration consequences,” would “impact his ability to stay in the country” and “will probably very well end up with [defendant] being deported from this country” … .

Defendant should be afforded 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 … , and we hold this appeal in abeyance for that purpose. People v Johnson, 2018 NY Slip Op 07072, First Dept 10-23-18

CRIMINAL LAW (DEPORTATION, DEFENDANT WAS TOLD MERELY THAT DEPORTATION WAS A PROBABILITY WHEN IT WAS MANDATORY, HE IS ENTITLED TO MOVE TO VACATE HIS GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (FIRST DEPT))/ATTORNEYS (CRIMINAL LAW, DEPORTATION, DEFENDANT WAS TOLD MERELY THAT DEPORTATION WAS A PROBABILITY WHEN IT WAS MANDATORY, HE IS ENTITLED TO MOVE TO VACATE HIS GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (FIRST DEPT))/INEFFECTIVE ASSISTANCE (DEPORTATION, DEFENDANT WAS TOLD MERELY THAT DEPORTATION WAS A PROBABILITY WHEN IT WAS MANDATORY, HE IS ENTITLED TO MOVE TO VACATE HIS GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (FIRST DEPT))/IMMIGRATION (CRIMINAL LAW, DEFENDANT WAS TOLD MERELY THAT DEPORTATION WAS A PROBABILITY WHEN IT WAS MANDATORY, HE IS ENTITLED TO MOVE TO VACATE HIS GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (FIRST DEPT))/GUILTY PLEA, MOTION TO VACATE (DEPORTATION, DEFENDANT WAS TOLD MERELY THAT DEPORTATION WAS A PROBABILITY WHEN IT WAS MANDATORY, HE IS ENTITLED TO MOVE TO VACATE HIS GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (FIRST DEPT))/DEPORTATION (CRIMINAL LAW, ATTORNEYS, DEFENDANT WAS TOLD MERELY THAT DEPORTATION WAS A PROBABILITY WHEN IT WAS MANDATORY, HE IS ENTITLED TO MOVE TO VACATE HIS GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (FIRST DEPT))

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DEFENDANT WAS TOLD MERELY THAT DEPORTATION WAS A POSSIBILITY WHEN IT WAS MANDATORY, HE IS ENTITLED TO MOVE TO VACATE HIS GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (FIRST DEPT).

The First Department determined defendant should be given the opportunity to move to vacate his guilty plea on ineffective assistance grounds because he was not adequately warned of the deportation consequences:

Defendant was deprived of effective assistance when his counsel failed to advise him that his guilty plea to an aggravated felony would result in mandatory deportation, and instead merely advised him that deportation was a possibility … .

Defendant should be afforded 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 (see id.), and we hold the appeal in abeyance for that purpose. People v Rodriguez, 2018 NY Slip Op 07061, First Dept 10-23-18

CRIMINAL LAW (DEPORTATION, DEFENDANT WAS TOLD MERELY THAT DEPORTATION WAS A POSSIBILITY WHEN IT WAS MANDATORY, HE IS ENTITLED TO MOVE TO VACATE HIS GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (FIRST DEPT))/ATTORNEYS (CRIMINAL LAW, DEPORTATION, DEFENDANT WAS TOLD MERELY THAT DEPORTATION WAS A POSSIBILITY WHEN IT WAS MANDATORY, HE IS ENTITLED TO MOVE TO VACATE HIS GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (FIRST DEPT))/INEFFECTIVE ASSISTANCE (DEPORTATION, DEFENDANT WAS TOLD MERELY THAT DEPORTATION WAS A POSSIBILITY WHEN IT WAS MANDATORY, HE IS ENTITLED TO MOVE TO VACATE HIS GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (FIRST DEPT))/IMMIGRATION (CRIMINAL LAW, DEFENDANT WAS TOLD MERELY THAT DEPORTATION WAS A POSSIBILITY WHEN IT WAS MANDATORY, HE IS ENTITLED TO MOVE TO VACATE HIS GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (FIRST DEPT))/GUILTY PLEA, MOTION TO VACATE (DEPORTATION, DEFENDANT WAS TOLD MERELY THAT DEPORTATION WAS A POSSIBILITY WHEN IT WAS MANDATORY, HE IS ENTITLED TO MOVE TO VACATE HIS GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (FIRST DEPT))/DEPORTATION (CRIMINAL LAW, ATTORNEYS, DEFENDANT WAS TOLD MERELY THAT DEPORTATION WAS A POSSIBILITY WHEN IT WAS MANDATORY, HE IS ENTITLED TO MOVE TO VACATE HIS GUILTY PLEA ON INEFFECTIVE ASSISTANCE GROUNDS (FIRST DEPT))

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ADJUDICATED JUVENILE DELINQUENT NOT ELIGIBLE FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Rivera, over an extensive dissent, determined that an adjudicated juvenile delinquent was not eligible for special immigrant juvenile status (SIJS):

On the instant appeal, this Court is presented with the issue of whether the Family Court properly denied the renewed motion of Keanu S. (hereinafter the child) for the issuance of an order declaring that he is dependent on the Family Court and making specific findings so as to enable him to petition the United States Citizenship and Immigration Services for special immigrant juvenile status pursuant to 8 USC § 1101(a)(27)(J). Specifically, the Family Court rejected the child’s contention that he was dependent upon a juvenile court, within the meaning of 8 USC § 1101(a)(27)(J)(i), by virtue of his placement in the custody of the Commissioner of Social Services of the City of New York following his adjudication as a juvenile delinquent. … [W]e agree with the Family Court’s determination and conclude that such a placement does not satisfy the requirement of dependency under the statute. * * *

We hold that the child herein is not an intended beneficiary of the SIJS provisions. He was not placed in the custody of the Commissioner of Social Services due to his status as an abused, neglected, or abandoned child. Instead, he was placed in the custody of the Commissioner of Social Services after committing acts which, if committed by an adult, would have constituted serious crimes. His violent acts and misconduct have resulted in painful and terrible consequences to his victims. In fact, even while under probation, his encounters with the law persisted. In effect, the child attempts to utilize his wrongdoings and the resultant juvenile delinquency adjudication as a conduit or a vehicle to meet the dependency requirement for SIJS. Such a determination is in conflict with the primary intent of Congress in enacting the SIJS scheme, namely, to protect abused, neglected, and abandoned immigrant children. We cannot fathom that Congress envisioned, intended, or proposed that a child could satisfy this requirement by committing acts which, if committed by adults, would constitute crimes, so as to warrant a court’s involvement or the legal commitment to an individual appointed by a state or juvenile court. Matter of Keanu S., 2018 NY Slip Op 06918, Second Dept 10-17-18

FAMILY LAW (ADJUDICATED JUVENILE DELINQUENT NOT ELIGIBLE FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (SECOND DEPT))/IMMIGRATION LAW (FAMILY LAW, ADJUDICATED JUVENILE DELINQUENT NOT ELIGIBLE FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (SECOND DEPT))/CRIMINAL LAW (FAMILY LAW, ADJUDICATED JUVENILE DELINQUENT NOT ELIGIBLE FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (SECOND DEPT))/SPECIAL IMMIGRANT JUVENILE STATUS (SIJS)  ADJUDICATED JUVENILE DELINQUENT NOT ELIGIBLE FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (SECOND DEPT))/JUVENILE DELINQUENT (FAMILY LAW, SPECIAL IMMIGRANT JUVENILE STATUS, ADJUDICATED JUVENILE DELINQUENT NOT ELIGIBLE FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (SECOND DEPT))

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PLAINTIFF, A LEGAL RESIDENT OF THE US, PLED GUILTY TO AN ELECTION LAW VIOLATION, PLAINTIFF’S COMPLAINT STATED CAUSES OF ACTION FOR LEGAL MALPRACTICE STEMMING FROM ALLEGED ADVICE THAT TRAVELING ABROAD WOULD NOT HAVE DETRIMENTAL IMMIGRATION CONSEQUENCES, PLAINTIFF WAS DETAINED FOR FOUR MONTHS WHEN HE ATTEMPTED TO RETURN FROM TRAVEL ABROAD (FIRST DEPT).

The First Department determined plaintiff's legal malpractice action based upon advice to plead guilty to an election law violation was not viable because he pled guilty without any assertion of innocence. However, the legal malpractice action based upon the advice that his travel abroad would not affect his immigration status was viable. Plaintiff, a legal resident, was detained for four months when he attempted to return to the US from abroad:

We affirm dismissal of part of the malpractice claim … . Plaintiff's claim that he pleaded guilty to criminal charges in reliance on defendants' negligent legal advice concerning the immigration consequences of the plea is barred by his guilty plea and lack of any claim of innocence (Carmel v Lunney, 70 NY2d 169, 173 [1987]… ).

However, the policy underlying the rule established in Carmel v Lunney, supra, does not require dismissal of the entirety of plaintiff's legal malpractice claim, because the remainder of his claim that defendants failed to advise him of the potential immigration consequences of traveling outside the United States as a result of entering a guilty plea does not dispute the validity of his conviction … . Further, plaintiff's allegations that he relied on defendants' faulty legal advice concerning the immigration consequences of his guilty plea in deciding to travel abroad after he pled guilty, resulting in his being detained and subjected to removal proceedings, state a valid cause of action for legal malpractice. Sehgal v DiRaimondo, 2018 NY Slip Op 06619, First Dept 10-4-18

LEGAL MALPRACTICE (PLAINTIFF, A LEGAL RESIDENT OF THE US, PLED GUILTY TO AN ELECTION LAW VIOLATION, PLAINTIFF'S COMPLAINT STATED CAUSES OF ACTION FOR LEGAL MALPRACTICE STEMMING FROM ALLEGED ADVICE THAT TRAVELING ABROAD WOULD NOT HAVE DETRIMENTAL IMMIGRATION CONSEQUENCES, PLAINTIFF WAS DETAINED FOR FOUR MONTHS WHEN HE ATTEMPTED TO RETURN FROM TRAVEL ABROAD (FIRST DEPT))/NEGLIGENCE (LEGAL MALPRACTICE, PLAINTIFF, A LEGAL RESIDENT OF THE US, PLED GUILTY TO AN ELECTION LAW VIOLATION, PLAINTIFF'S COMPLAINT STATED CAUSES OF ACTION FOR LEGAL MALPRACTICE STEMMING FROM ALLEGED ADVICE THAT TRAVELING ABROAD WOULD NOT HAVE DETRIMENTAL IMMIGRATION CONSEQUENCES, PLAINTIFF WAS DETAINED FOR FOUR MONTHS WHEN HE ATTEMPTED TO RETURN FROM TRAVEL ABROAD (FIRST DEPT))/ATTORNEYS (MALPRACTICE, PLAINTIFF, A LEGAL RESIDENT OF THE US, PLED GUILTY TO AN ELECTION LAW VIOLATION, PLAINTIFF'S COMPLAINT STATED CAUSES OF ACTION FOR LEGAL MALPRACTICE STEMMING FROM ALLEGED ADVICE THAT TRAVELING ABROAD WOULD NOT HAVE DETRIMENTAL IMMIGRATION CONSEQUENCES, PLAINTIFF WAS DETAINED FOR FOUR MONTHS WHEN HE ATTEMPTED TO RETURN FROM TRAVEL ABROAD (FIRST DEPT))/IMMIGRATION LAW (ATTORNEYS, LEGAL MALPRACTICE, PLAINTIFF, A LEGAL RESIDENT OF THE US, PLED GUILTY TO AN ELECTION LAW VIOLATION, PLAINTIFF'S COMPLAINT STATED CAUSES OF ACTION FOR LEGAL MALPRACTICE STEMMING FROM ALLEGED ADVICE THAT TRAVELING ABROAD WOULD NOT HAVE DETRIMENTAL IMMIGRATION CONSEQUENCES, PLAINTIFF WAS DETAINED FOR FOUR MONTHS WHEN HE ATTEMPTED TO RETURN FROM TRAVEL ABROAD (FIRST DEPT))/ELECTION LAW (IMMIGRATION LAW, LEGAL MALPRACTICE, (PLAINTIFF, A LEGAL RESIDENT OF THE US, PLED GUILTY TO AN ELECTION LAW VIOLATION, PLAINTIFF'S COMPLAINT STATED CAUSES OF ACTION FOR LEGAL MALPRACTICE STEMMING FROM ALLEGED ADVICE THAT TRAVELING ABROAD WOULD NOT HAVE DETRIMENTAL IMMIGRATION CONSEQUENCES, PLAINTIFF WAS DETAINED FOR FOUR MONTHS WHEN HE ATTEMPTED TO RETURN FROM TRAVEL ABROAD (FIRST DEPT))

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