| People v Santos |
| 2016 NY Slip Op 08169 [145 AD3d 461] |
| December 6, 2016 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Oscar Santos, Appellant. |
Wilens & Baker, New York (Daniel S. Kratka of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Patricia Curran of counsel), forrespondent.
Order, Supreme Court, New York County (Abraham L. Clott, J.), entered August 28,2013, which denied defendant's CPL 440.10 motion to vacate judgment, unanimouslyreversed, on the law, and the matter remanded for an evidentiary hearing.
This case presents factual issues requiring a hearing into whether defendant wasdeprived of effective assistance of counsel under People v McDonald (1 NY3d 109 [2003]) by way oferroneous and prejudicial immigration advice. Defendant alleges that his attorneyerroneously advised him that if he pleaded guilty to a drug sale count with a sentence ofprobation, he would not be subject to deportation, but if he refused the plea offer,proceeded to trial and lost, he would go to prison and then be deported. Defendant'sclaim is corroborated, to some extent, by statements made to present counsel by theattorney who represented defendant at the time of the plea (see People v Rosario, 132AD3d 454, 455 [1st Dept 2015]). The standard "no other promises" disclaimer indefendant's plea allocution does not, as a matter of law, defeat his claim of erroneouslegal advice. This case warrants a hearing at which defendant may establish the advice heactually received regarding the deportation consequences of his plea. To the extent that,in denying the motion, the court relied on defendant's delay in bringing it, we concludethat the record is undeveloped with regard to when defendant learned of the trueimmigration consequences of his conviction; accordingly, this is also a proper subject forthe hearing.
This case also warrants a hearing on the prejudice prong of defendant's claim.Defendant made a sufficient showing to raise an issue of fact as to whether he could haverationally rejected the plea offer under all the circumstances of the case, including theserious consequences of deportation and his incentive to remain in the United States (see People v Samuels, 143AD3d 401 [1st Dept 2016]; People v Rosario, 132 AD3d at 455). Further,[*2]defendant sufficiently alleges that if immigrationconsequences had been factored into the plea bargaining process, counsel might havebeen able to negotiate a different plea agreement that would not have resulted inautomatic deportation. Concur—Renwick, J.P., Saxe, Gische and Webber, JJ.