People v George (2020 NY Slip Op 02852) People v George 2020 NY Slip Op 02852 Decided on May 14, 2020 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on May 14, 2020 Richter, J.P., Gische, Gesmer, Kern, González, JJ. 10747 5253/14 1947/15 [*1] The People of the State of New York, Respondent, vRony George, Defendant-Appellant. Robert S. Dean, Center for Appellate Litigation, New York (Chloe Serinsky of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Jennifer Westphal of counsel), for respondent. Order, Supreme Court, New York County (Abraham L. Clott, J.), entered on or about May 23, 2019, which denied defendant's CPL 440.10 motion to vacate a judgment rendered June 29, 2016, unanimously reversed, on the law, and the matter remanded for a hearing on defendant's claim of ineffective assistance of counsel. The motion court abused its discretion by denying defendant's CPL 440.10 motion without a hearing, where his motion was supported by adequate allegations of fact to support his claim of ineffective assistance of counsel. Defendant pled guilty to two counts of criminal sale of a controlled substance in the third degree and one count of conspiracy in the fourth degree in satisfaction of two indictments, and was sentenced to an aggregate term of one year in prison and one year of post-release supervision. The crime to which defendant pled is categorized as an "aggravated felony" for immigration purposes (see 8 USC § 1101[a][43][B]). As a result, he was subject to mandatory deportation and was ineligible to seek asylum (see 8 USC § 1227[a][2][A][iii] and 8 USC § 1158[b][2][B][i]). He completed serving his sentence in late 2016. In April 2018, he was arrested by ICE and has been in immigration detention since then, while fighting his deportation. In his CPL article 440 motion to vacate his judgment, defendant alleged that he was denied effective assistance of counsel because his counsel failed to make any effort to negotiate a plea with less severe immigration consequences (People v Richards, 177 AD3d 469, 471 [1st Dept 2019], lv denied 34 NY3d 1132 [2020]; People v Guzman, 150 AD3d 1259 [2d Dept 2017]; People v Moore, 141 AD3d 604 [2d Dept 2016]; Lafler v Cooper, 566 US 156, 162 [2012]; Padilla v Kentucky, 559 US 356, 373 [2010])[FN1]. The motion court denied defendant's motion without conducting a hearing (see CPL 440.30[4]). A court must conduct a hearing before denying a CPL article 440 motion unless "[a]n allegation of fact essential to support the motion (i) is contradicted by a court record or other official document, or is made solely by the defendant and is unsupported by any other affidavit or evidence, and (ii) under these and all the other circumstances attending the case, there is no reasonable possibility that such allegation is true" (CPL 440.30[4][d]; see also People v Caldavado, 26 NY3d 1034 [2015]). ...
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