| People v Ramos |
| 2012 NY Slip Op 07752 [100 AD3d 487] |
| November 15, 2012 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Frankie Ramos, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Clara H. Salzberg of counsel), forrespondent.
Order, Supreme Court, Bronx County (Efrain Alvarado, J.), entered on or about May 27,2011, which denied defendant's CPL 440.10 motion to vacate a judgment of the same court andJustice, rendered March 19, 2007, convicting defendant, upon his plea of guilty, of criminal saleof a controlled substance in the third degree, and sentencing him to a term of one year,unanimously reversed, on the law, and the matter remanded for a hearing on defendant's motion.
Defendant's moving papers were sufficient to warrant a hearing on his claim of ineffectiveassistance of counsel under Padilla v Kentucky (559 US —, 130 S Ct 1473[2010]), which is applicable to this case (see People v Baret, 99 AD3d 408 [1st Dept 2012]). Defendantadequately alleged that his counsel at the plea proceeding failed to inform him that a plea tocriminal sale of a controlled substance in the third degree would subject him to automaticdeportation without the possibility of discretionary relief from removal.
We reject the People's argument that defendant's allegations were excessively vague. It isclear that defendant was not alleging that his plea counsel provided either misadvice or no adviceat all on immigration consequences, but that counsel provided materially incomplete orinadequate advice, given the clarity of the applicable immigration statutes (see Padilla,559 US at —, 130 S Ct at 1483).
Similarly, defendant's allegations that he would not have pleaded guilty but for his attorney'sdeficient advice regarding the immigration consequences of the plea were sufficient to raise aquestion of fact as to whether defendant was prejudiced. Defendant claimed serious healthproblems, including that he required dialysis three times a week, and alleged that the medicalcare necessary to keep him alive was unavailable in his native Honduras. He alleged that had heknown that discretionary relief from deportation was unavailable for a person convicted ofthird-degree sale of a controlled substance, he would not have accepted that plea, even though thepromised sentence was only one year. Instead, he would have asked his attorney to negotiate aplea with less severe immigration consequences, and, if unsuccessful, would have gone to trial.
Furthermore, the possibility of prejudice was not foreclosed by the fact that deportationproceedings had been initiated against defendant based on two other convictions and not theinstant one. The two other offenses were misdemeanors, subject to discretionary relief from [*2]removal, and the government was not precluded from proceedingbased on the instant felony conviction.
Finally, we conclude that defendant sufficiently explained his inability to obtain anaffirmation from the attorney who represented him at the plea. Motion counsel set forth in detailher conversations with plea counsel. To the extent plea counsel recalled the case, hisrecollections tended to support defendant's position. However, plea counsel did not respond torequests for an affirmation. The prosecutor also spoke with plea counsel, but did not learnanything that would warrant summary denial of the motion. Moreover, defendant's allegationswere corroborated by plea minutes that support an inference that while defendant was aware hisplea could have immigration consequences, both defendant and counsel were under amisapprehension that discretionary relief from deportation was available. Under all thesecircumstances, motion counsel's failure to make a formal written request for an affirmation didnot warrant denial of a hearing.
We have considered and rejected the People's remaining arguments.Concur—Friedman, J.P., Sweeny, Moskowitz, Freedman and Román, JJ.