People v. Hemans

Oct 6, 2015
15782 2665/09
Versions:132 A.D.3d 428
17 N.Y.S.3d 122

Order, Supreme Court, Bronx County (Harold Adler, J.), entered on or about August 13, 2012, which summarily denied defendant‘s CPL 440.10 motion to vacate a judgment of conviction rendered on June 28, 2010, unanimously reversed, on the law, and the matter remanded for an evidentiary hearing.

Initially, we reject the People‘s argument that we should decline to hear this appeal, for which leave to appeal has been granted by a Justice of this Court, on the ground that defendant has been deported and is unable to appear in court (see People v Badia, 106 AD3d 514 [1st Dept 2013], lv denied 22 NY3d 1154 [2014]; see also People v Ventura, 17 NY3d 675 [2011]).

In his pro se CPL 440.10 motion, which was supplemented by an affirmation from new counsel, an additional affidavit from defendant, exhibits and a memorandum of law, defendant alleged that plea counsel, although aware that defendant was not a United States citizen, never advised him that his plea to attempted criminal possession of a weapon in the second degree would have deportation consequences, and that had he known of such consequences, he would not have pleaded guilty. Notes from plea counsel indicated that she was aware of his status but did not indicate that she advised him of the immigration consequences of his plea.

Attempted criminal possession of a weapon in the second degree (Penal Law §§ 110.00, 265.03 [1] [b]) is a “crime of violence” under 18 USC § 16 and an aggravated felony triggering removal under 8 USC § 1227 (a) (2) (A) (iii). Because the immigration consequences of defendant‘s guilty plea were clear, counsel was obligated to advise him of that fact when counseling him about whether to plead guilty (Padilla v Kentucky, 559 US 356 [2010]).

Defendant raised sufficient questions of fact concerning the effectiveness of counsel‘s assistance to warrant a hearing (see People v Chacko, 99 AD3d 527 [1st Dept 2012], lv denied 20 NY3d 1060 [2013]). Concur — Gonzalez, P.J., Mazzarelli, Sweeny, Richter and Manzanet-Daniels, JJ.