People v. Abdallah

People v Abdallah (2017 NY Slip Op 06657) People v Abdallah 2017 NY Slip Op 06657 Decided on September 27, 2017 Appellate Division, Second 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 September 27, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department L. PRISCILLA HALL, J.P. SHERI S. ROMAN JEFFREY A. COHEN BETSY BARROS, JJ. 2015-10214 (Ind. No. 1189/10) [*1]The People of the State of New York, respondent, vMuhammad Abdallah, appellant. Seymour W. James, Jr., New York, NY (Natalie Rea of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, Nancy Fitzpatrick Talcott, and Ayelet Sela of counsel), for respondent. DECISION & ORDER Appeal by the defendant, by permission, from an order of the Supreme Court, Queens County (Blumenfeld, J.), dated August 21, 2015, which, after a hearing, denied his motion pursuant to CPL 440.10 to vacate a judgment of the same court rendered March 21, 2013, convicting him of grand larceny in the second degree, upon his plea of guilty, and imposing sentence. ORDERED that the order is reversed, on the law, the defendant's motion to vacate the judgment is granted, and the matter is remitted to the Supreme Court, Queens County, for further proceedings on the indictment. The defendant, a citizen of Barbados, pleaded guilty to grand larceny in the second degree in exchange for a sentence of six months' incarceration, concurrent with five years of probation. The Supreme Court subsequently imposed sentence on March 21, 2013, in accordance with the terms of the plea agreement. The defendant did not take a direct appeal from the judgment, and his time to do so has expired. In April 2014, the United States Department of Homeland Security, Department of Immigration and Customs Enforcement, commenced removal proceedings to deport the defendant to Barbados, and he was placed in detention at the Hudson County jail in New Jersey. Thereafter, the defendant moved pursuant to CPL 440.10(1)(h) to vacate the judgment of conviction, alleging that defense counsel affirmatively misrepresented the immigration consequences of his plea of guilty. In support of the motion, the defendant submitted an affidavit in which he stated that defense counsel advised him that a plea of guilty to grand larceny in the second degree would not affect his right to request cancellation of removal, and that had he known he would not be allowed to apply for cancellation of removal, he would not have pleaded guilty. The defendant also submitted defense counsel's affirmation in which he stated that he had consulted with an attorney with the Immigration Defense Project, who informed him that the defendant would be eligible to apply for and receive a cancellation of removal. Defense counsel further stated that, prior to the defendant's plea, he informed the defendant that, based on his conversation with that attorney, the defendant could apply ...

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