Opinion
15782, 2665/09.
10-06-2015
The PEOPLE of the State of New York, Respondent, v. Dwayne HEMANS, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Ramandeep Singh of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Ramandeep Singh of counsel), for respondent.
GONZALEZ, P.J., MAZZARELLI, SWEENY, RICHTER, MANZANET–DANIELS, JJ.
Opinion Order, Supreme Court, Bronx County (Harold Adler, J.), entered on or about August 13, 2012, which summarily denied defendant's CPL 440.10 motion to vacate a judgment of conviction rendered on June 28, 2010, unanimously reversed, on the law, and the matter remanded for an evidentiary hearing.
Initially, we reject the People's argument that we should decline to hear this appeal, for which leave to appeal has been granted by a Justice of this Court, on the ground that defendant has been deported and is unable to appear in court (see People v. Badia, 106 A.D.3d 514, 964 N.Y.S.2d 906 [1st Dept.2013], lv. denied 22 N.Y.3d 1154, 984 N.Y.S.2d 638, 7 N.E.3d 1126 [2014] ; see also People v. Ventura, 17 N.Y.3d 675, 934 N.Y.S.2d 756, 958 N.E.2d 884 [2011] ).
In his pro se CPL 440.10 motion, which was supplemented by an affirmation from new counsel, an additional affidavit from defendant, exhibits and a memorandum of law, defendant alleged that plea counsel, although aware that defendant was not a United States citizen, never advised him that his plea to attempted criminal possession of a weapon in the second degree would have deportation consequences, and that had he known of such consequences, he would not have pleaded guilty. Notes from plea counsel indicated that she was aware of his status but did not indicate that she advised him of the immigration consequences of his plea.
Attempted criminal possession of a weapon in the second degree (Penal Law §§ 110.00 ; 265.03[1][b] ) is a “crime of violence” under 18 USC § 16 and an aggravated felony triggering removal under 8 USC § 1227(a)(2)(A)(iii). Because the immigration consequences of defendant's guilty plea were clear, counsel was obligated to advise him of that fact when counseling him about whether to plead guilty (Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 [2010] ).Defendant raised sufficient questions of fact concerning the effectiveness of counsel's assistance to warrant a hearing (see People v. Chacko, 99 A.D.3d 527, 952 N.Y.S.2d 160 [1st Dept.2012], lv. denied 20 N.Y.3d 1060, 962 N.Y.S.2d 611, 985 N.E.2d 921 [2013] ).