| People v Rosario |
| 2015 NY Slip Op 07430 [132 AD3d 454] |
| October 13, 2015 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Juan Paulino Rosario, Appellant. |
Seymour W. James, Jr., The Legal Aid Society, New York (Harold V. Ferguson, Jr.of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Patrick J. Hynes of counsel), forrespondent.
Order, Supreme Court, New York County (Robert M. Mandelbaum, J.), entered onor about July 19, 2013, which denied defendant's CPL 440.10 motion to vacate ajudgment of conviction rendered January 13, 1998, unanimously reversed, on the law,and the matter remanded for further proceedings.
Defendant made a sufficient showing to warrant a hearing on his claim that hisattorney rendered ineffective assistance by providing erroneous and prejudicial adviceabout the immigration consequences of his guilty plea (see People v McDonald, 1NY3d 109, 114-115 [2003]). Defendant's plea to attempted third-degree sale of acontrolled substance was entered in exchange for a promised sentence of five years'probation with a certificate of relief from civil disabilities. Defendant claims that hisattorney misadvised him that even though a drug trafficking conviction would be likelyto result in deportation, the certificate of relief would shield him from thatconsequence.
The plea and sentencing minutes, including the attorney's statements to the court,appear to corroborate that claim.
Defendant also averred, among other things, that he would not have accepted thisplea had he known that it plea permitted deportation notwithstanding the certificate ofrelief, and that he would have gone to trial if a plea without immigration consequenceswas not possible. Under [*2]all the circumstancespresent, defendant made a sufficient demonstration of prejudice to entitle him to ahearing (see People vHernandez, 22 NY3d 972, 975-976 [2013]). Concur—Mazzarelli, J.P.,Renwick, Andrias and Manzanet-Daniels, JJ.