People v Augusto (2009 NY Slip Op 50393(U))

People v Augusto (Manny)

2009 NY Slip Op 50393(U) [22 Misc 3d 140(A)]

Decided on March 9, 2009

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

The People of the State of New York, Appellant,

against

Manny Augusto a/k/a EMMANUEL AUGUSTIN, Respondent.

Appeal from an order of the Criminal Court of the City of New York, Queens County (Fernando M. Camacho, J.), dated October 18, 2007. The order, following a hearing, granted defendant's CPL 440.10 motion to vacate the judgment of conviction.

Defendant moved pursuant to CPL 440.10 to vacate a judgment convicting him, upon his plea of guilty, of attempted possession of a controlled substance in the seventh degree (Penal Law §§ 110.00, 220.03). In support of the motion, defendant argued that he was denied his right to the effective assistance of counsel during the plea allocution because he was given erroneous advice from his attorney as to the immigration consequences of his plea. A hearing was held on the motion, at which defendant testified that he would not have entered his guilty plea but for his counsel's erroneous advice that he would not be deported upon entering a plea of guilty. The evidence adduced at the hearing established that defendant's attorney advised him that there would be no immigration consequences upon taking the plea. Defendant testified further that he is subject to deportation as a result of said plea. Following the hearing, the Criminal Court granted defendant's motion.

A defense counsel's affirmative misstatement providing incorrect advice to a defendant regarding deportation in response to a specific inquiry by the defendant may fall below an objective standard of reasonableness and may be considered ineffective assistance of counsel (see People v McDonald, 1 NY3d 109, 114 [2003]; People v McKenzie, 4 AD3d 437 [2004]; People v Michael, 16 Misc 3d 84 [App Term, 9th & 10th Jud Dists 2007]). In the instant case, defendant's attorney's misstatement that the plea would not affect defendant's immigration status, along with defendant's testimony that he would not have pleaded guilty but, rather, would have [*2]gone to trial had he been correctly informed of the consequences of his guilty plea, established that he was denied effective assistance of counsel sufficient to constitute a legal basis for the relief requested (see McDonald, 1 NY3d at 114; McKenzie, 4 AD3d at 437; Michael, 16 Misc 3d 84). Accordingly, the order granting defendant's motion to vacate the judgment of conviction is affirmed.