| People v Disla |
| 2019 NY Slip Op 04995 [173 AD3d 555] |
| June 20, 2019 |
| Appellate Division, First Department |
[*1](June 20, 2019)
| The People of the State of New York,Respondent, v Eduardo Disla, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno of counsel), forappellant.
Cyrus R. Vance, Jr., District Attorney, New York (Ross D. Mazer of counsel), forrespondent.
Appeal from judgment, Supreme Court, New York County (Bruce Allen, J.), renderedFebruary 20, 2013, convicting defendant, upon his plea of guilty, of criminal possession of acontrolled substance in the third degree, and sentencing him to a term of 2
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(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. While defendant requests that his conviction be replaced by a conviction undera different subdivision of Penal Law § 220.16 that may entail less onerousimmigration consequences, we find that to be an inappropriate remedy, and we instead order ahearing. Concur—Sweeny, J.P., Gische, Mazzarelli, Webber, Kahn, JJ.