| People v Johnson |
| 2018 NY Slip Op 07072 [165 AD3d 556] |
| October 23, 2018 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Gilroy Johnson, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Scott Henney of counsel), forappellant.
Darcel D. Clark, District Attorney, Bronx (Kristian D. Amundsen of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (William I. Mogulescu, J.), rendered June 10,2014, convicting defendant, upon his plea of guilty, of burglary in the first degree and robbery inthe first degree, and sentencing him to an aggregate term of six years, held in abeyance and thematter 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 of counsel when his counselfailed to advise him that his guilty plea to an aggravated felony would result in mandatorydeportation, and instead merely advised him that his plea would have "immigrationconsequences," would "impact his ability to stay in the country" and "will probably very well endup with [defendant] being deported from this country" (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 this appeal in abeyancefor that purpose.
The court properly denied defendant's motion to suppress a lineup identification. The lineupwas not unduly suggestive, because defendant and the fillers, who all fit the victim's descriptionof his assailant, were reasonably similar in appearance, and there was no substantial likelihoodthat defendant would be singled out (see People v Jackson, 98 NY2d 555, 559 [2002];People v Chipp, 75 NY2d 327, 336 [1990], cert denied 498 US 833 [1990]).
We perceive no basis for reducing the sentence. Concur—Sweeny, J.P., Gische, Tom,Mazzarelli, Kern, JJ.