People v Hungria (2018 NY Slip Op 03545) People v Hungria 2018 NY Slip Op 03545 Decided on May 16, 2018 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 May 16, 2018 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department RUTH C. BALKIN, J.P. LEONARD B. AUSTIN SYLVIA O. HINDS-RADIX FRANCESCA E. CONNOLLY, JJ. 2017-06445 [*1]The People of the State of New York, respondent, vJavier C. Hungria, appellant. (S.C.I. No. 923/14) Gary Schoer, Syosset, NY, for appellant. Madeline Singas, District Attorney, Mineola, NY (Daniel Bresnahan and Monica M. C. Leiter of counsel), for respondent. DECISION & ORDER Appeal by the defendant, by permission, from an order of the Supreme Court, Nassau County (Robert G. Bogle, J.), entered May 17, 2017, which, without a hearing, denied his motion pursuant to CPL 440.10 to vacate a judgment of the County Court, Nassau County (Erica L. Prager, J.), rendered September 22, 2014, convicting him of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree, and criminal possession of a controlled substance in the seventh degree, upon his plea of guilty, and imposing sentence. ORDERED that the order is reversed, on the law, and the matter is remitted to the Supreme Court, Nassau County, for a hearing and a new determination thereafter of the defendant's motion. The defendant is a lawful permanent resident of the United States who emigrated from the Dominican Republic in 1996. In 2014, he was arrested and charged by superior court information with criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree, and criminal possession of a controlled substance in the seventh degree. The defendant rejected the People's offer for him to plead guilty to a D felony, a lesser charge than the top counts of the superior court information, in exchange for a sentence of 60 days of imprisonment and 5 years of probation. Thereafter, the defendant and the People accepted a plea bargain proposed by the County Court, that the defendant plead guilty to all of the charges in exchange for a sentence of 30 days of imprisonment and 5 years of probation. Thereafter, the defendant moved pursuant to CPL 440.10 to vacate the judgment of conviction on the ground of ineffective assistance of counsel. He argued, inter alia, that his counsel failed to advise him or recognize that he pleaded guilty to aggravated felonies, thereby subjecting him to mandatory deportation, and that the People's offer would not have necessarily subjected him to mandatory deportation. The People opposed the motion, contending that its plea offer entailed the defendant pleading guilty to criminal sale of a controlled substance in the fifth degree, which was also an aggravated felony, so that, in any event, the defendant would ...
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