| People v Hemans |
| 2015 NY Slip Op 07226 [132 AD3d 428] |
| October 6, 2015 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Dwayne Hemans, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno ofcounsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Ramandeep Singh of counsel), forrespondent.
Order, Supreme Court, Bronx County (Harold Adler, J.), entered on or about August13, 2012, which summarily denied defendant's CPL 440.10 motion to vacate a judgmentof conviction rendered on June 28, 2010, unanimously reversed, on the law, and thematter 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 thatdefendant has been deported and is unable to appear in court (see People v Badia, 106 AD3d514 [1st Dept 2013], lv denied 22 NY3d 1154 [2014]; see also People v Ventura, 17NY3d 675 [2011]).
In his pro se CPL 440.10 motion, which was supplemented by an affirmation fromnew counsel, an additional affidavit from defendant, exhibits and a memorandum of law,defendant alleged that plea counsel, although aware that defendant was not a UnitedStates citizen, never advised him that his plea to attempted criminal possession of aweapon in the second degree would have deportation consequences, and that had heknown of such consequences, he would not have pleaded guilty. Notes from plea counselindicated that she was aware of his status but did not indicate that she advised him of theimmigration 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 ofdefendant's guilty plea were clear, counsel was obligated to advise him of that fact whencounseling him about whether to plead guilty (Padilla v Kentucky, 559 US 356[2010]).
Defendant raised sufficient questions of fact concerning the effectiveness ofcounsel's assistance to warrant a hearing (see People v Chacko, 99 AD3d 527 [1st Dept 2012], lvdenied 20 NY3d 1060 [2013]). Concur—Gonzalez, P.J., Mazzarelli, Sweeny,Richter and Manzanet-Daniels, JJ.