| People v Sanchez |
| 2017 NY Slip Op 04200 [150 AD3d 589] |
| May 25, 2017 |
| Appellate Division, First Department |
[*1](May 25, 2017)
| The People of the State of New York,Respondent, v Lesley Sanchez, Appellant. |
Joseph F. DeFelice, Kew Gardens, for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Jonathon Krois of counsel), forrespondent.
Order, Supreme Court, New York County (Abraham L. Clott, J.), entered on or about March9, 2016, which denied defendant's CPL 440.10 motion to vacate a judgment of conviction, samecourt (William Wetzel, J.), rendered August 17, 2000, convicting her, upon a plea of guilty, ofattempted conspiracy in the second degree, and sentencing her to five years of probation,unanimously reversed, on the law, and the motion granted to the extent of remanding for ahearing on defendant's claim of ineffective assistance of counsel and a decision de novo on themotion.
The court improvidently exercised its discretion in denying without a hearing defendant'sCPL 440.10 motion alleging ineffective assistance of counsel for failure to render accurate adviceon the immigration consequences of pleading guilty to a felony (see People v Picca, 97 AD3d 170[2d Dept 2012], citing inter alia Peoplev McDonald, 1 NY3d 109 [2003]), without a hearing. Defendant said in an affidavit thatshe informed her plea counsel that she was not a U.S. citizen but was a legal permanent residentand was concerned about maintaining her immigration status and not being deported. Counseladvised her that, if she pleaded guilty to attempted second-degree conspiracy, she would receivefive years of probation, with no jail time, and assured her that, by taking the plea and receivingprobation, she would not have to fear any deportation proceedings. Defendant, age 26 at the time,had been in jail since her arrest, and wanted to be released as soon as possible, so that she couldrejoin her two young children.
Accordingly, defendant pleaded guilty, was sentenced as indicated, and successfullycompleted her probation.
However, in 2012, defendant was referred to U.S. Immigration and Customs Enforcement(ICE), and on June 5, 2012, ICE issued her a Notice to Appear. Defendant said that she learnedthat conspiracy is considered an "aggravated felony" under the immigration law, which leaves herexposed to deportation proceedings, except under limited and difficult-to-meet exceptions underthe Convention Against Torture.[FN*]
Defendant said that, if she had known that her guilty plea would subject her to a risk ofdeportation, she "never would have entered a guilty plea," but instead "would have contested thematter, tried to negotiate a better plea or taken the case to trial." She said that she believed thatshe "would have had a good defense as [she] was not involved in any drug activity, did not knowthat [her] stepfather was involved in drugs and never saw any drugs in the Baysidelocation."
[*2] Defendant submitted an affidavit byher plea counsel, who said that she no longer possessed a copy of defendant's file, and the pleatranscript was not available. Nonetheless, counsel said she recalled speaking to defendant a fewtimes, with her secretary acting as interpreter. Counsel recalled that defendant was a legalresident and not a U.S. citizen, but "[did] not recall any advice [she] may have given to[defendant] concerning the plea she eventually entered and the ramifications of that plea upon herstatus in the United States."
Counsel explained that her difficulty remembering was due not only to the passage of 15years, but also to the fact that, at the time of the plea, she was going through "personaldifficulties," including "alcoholism and addiction." In May 2000, counsel was indicted inSupreme Court, Ulster County, for first-degree promoting prison contraband, seventh-degreecriminal possession of a controlled substance, and second-degree harassment.
Under these circumstances, a hearing should be held on whether counsel's performance roseto the level of ineffective assistance of counsel (see People v Picca, 97 AD3d 170 [2012]). Concur—Acosta,P.J., Mazzarelli, Manzanet-Daniels and Webber, JJ.
Footnote *:Her current counsel, noted thatdefendant's sister (Paola Sanchez-Lopez), who "took a similar offer" and "faced a similardilemma" was subjected to removal proceedings and unsuccessfully asserted a ConventionAgainst Torture claim. Defendant's sister avoided deportation only by having her convictionvacated and re-pleading to criminal trespass.