People v. Gaston

People v Gaston (2018 NY Slip Op 05122) People v Gaston 2018 NY Slip Op 05122 Decided on July 10, 2018 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 July 10, 2018 Friedman, J.P., Kahn, Singh, Moulton, JJ. 7091 15/15 7090 [*1]The People of the State of New York, Appellant, vBonhof Gaston, etc., Defendant-Respondent. Darcel D. Clark, District Attorney, Bronx (Joshua P. Weiss of counsel), for appellant. Christina Swarns, Office of the Appellate Defender, New York (Caitlin Glass of counsel), for respondent. Order, Supreme Court, Bronx County (William I. Mogulescu, J.), entered on or about August 15, 2017, which granted defendant's CPL 440.10 motion to vacate a June 10, 2015 judgment of conviction, unanimously reversed, on the law, and the matter remanded for a hearing on defendant's claim of ineffective assistance of counsel as to the issue of prejudice, and for a decision de novo on the motion. The court improvidently exercised its discretion in summarily granting, without holding a hearing, defendant's motion seeking to vacate of the judgment on the ground that, with respect to the immigration consequences of his guilty plea, his counsel failed to advise him (see Padilla v Kentucky, 559 US 356, 367-369 [2010]), or misadvised him (see People v McDonald, 1 NY3d 109, 113-14 [2003]). In 2014, defendant was indicted for assault-related felonies. In 2015, defendant pleaded guilty to third-degree assault under Penal Law § 120.00(1), and was sentenced to a term of one year. During the plea colloquy, the court asked defense counsel, "[H]ave you discussed the immigration consequences of this guilty plea with your client?" Counsel replied, "There are none." The court then gave defendant a warning of possible deportation in accordance with People v Peque (22 NY3d 168 [2013], cert denied sub nom. Thomas v New York, 574 US &mdash, 135 S Ct 90 [2014]). At the time of his guilty plea, defendant was also under indictment in Supreme Court, Kings County for attempted murder in a separate incident involving his pressing a firearm against a man's head and shooting him. By pro se papers dated March 24, 2016, defendant moved to vacate his third-degree assault conviction pursuant to CPL 440.10. In a written decision dated July 11, 2016, the court denied defendant's pro se motion. Defendant then obtained new counsel, who filed a second CPL 440.10 motion dated March 9, 2017 seeking the same relief, which, as stated above, was granted by the court in its August 15, 2017 order. Counsel's statement on the record that there were no immigration consequences to the plea was incorrect because defendant pleaded guilty to a crime involving moral turpitude for immigration purposes (see Immigration and Nationality Act § 212[a][2][i][II]), and as such this conviction formed a part of the basis for a deportation order issued for defendant. We find that counsel's misadvice regarding the immigration consequences of defendant's ...

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