| People v Rodriguez |
| 2018 NY Slip Op 07061 [165 AD3d 546] |
| October 23, 2018 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Luis Rodriguez, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Barbara Zolot of counsel), forappellant.
Cyrus R. Vance, Jr., District Attorney, New York (Vincent Rivellese of counsel), forrespondent.
Appeals from judgment, Supreme Court, New York County (Ronald A. Zweibel, J.),rendered February 26, 2009, convicting defendant, upon his plea of guilty, of criminal possessionof a controlled substance in the first degree, and sentencing him to a term of 15 years to life; andfrom order, same court and Justice, entered on or about April 29, 2009, which denied defendant'smotion for resentencing pursuant to the Drug Law Reform Act of 2004, held in abeyance, and thematters remitted for further proceedings in accordance herewith.
Although defendant did not file a CPL 440.10 motion, the existing record is sufficient toreview his ineffective assistance of counsel claim (see People v Pequero, 158 AD3d 421 [2018]; People v Doumbia, 153 AD3d1139 [2017]). Defendant was deprived of effective assistance when his counsel failed toadvise him that his guilty plea to an aggravated felony would result in mandatory deportation,and instead merely advised him that deportation was a possibility (see id.).
Defendant should be afforded the opportunity to move to vacate his plea upon a showing thatthere is a reasonable probability that he would not have pleaded guilty had he been made awareof the deportation consequences of his plea (see id.), and we hold the appeal in abeyancefor that purpose. Concur—Sweeny, J.P., Gische, Tom, Mazzarelli, Kern, JJ.