People v Malik (2018 NY Slip Op 07452) People v Malik 2018 NY Slip Op 07452 Decided on November 7, 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 November 7, 2018 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department WILLIAM F. MASTRO, J.P. JEFFREY A. COHEN SYLVIA O. HINDS-RADIX ANGELA G. IANNACCI, JJ. 2016-09333 [*1]The People of the State of New York, respondent, vAftab A. Malik, appellant. (S.C.I. No. 1065/07) Labe M. Richman, New York, NY, for appellant. Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, Nancy Fitzpatrick Talcott, Jonathan K. Yi, and Deborah E. Wassel of counsel), for respondent. DECISION & ORDER Appeal by the defendant, by permission, from an order of the Supreme Court, Queens County (Dorothy K. Chin-Brandt, J.), dated July 12, 2016, which, without a hearing, denied his motion pursuant to CPL article 440 to vacate a judgment of the same court rendered October 25, 2007, convicting him of reckless endangerment in the first degree, upon his plea of guilty, and imposing sentence. ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the defendant's motion which was pursuant to CPL 440.10(1)(h) to vacate the judgment rendered October 25, 2007, on the ground that he was deprived of the effective assistance of counsel by his counsel's allegedly erroneous advice regarding the immigration consequences of his plea; as so modified, the order is affirmed, and the matter is remitted to the Supreme Court, Queens County, for a hearing and a new determination, on the merits, of that branch of the defendant's motion. The defendant moved to the United States from Pakistan in 2003 as a lawful permanent resident. On or about January 10, 2007, the defendant was charged by felony complaint with assault in the first degree, assault in the second degree, attempted assault in the third degree, and criminal possession of a weapon in the fourth degree, arising from an incident where the defendant allegedly sliced the complainant's head with a box cutter, causing a significant laceration that required 20 staples to close. Three months later, the defendant waived indictment and pleaded guilty to reckless endangerment in the first degree, with the understanding that, upon the successful completion of a program, a sentence of five years of probation would be imposed. He completed the program, he was sentenced in accordance with the promised plea, he never appealed his judgment of conviction to this Court, and his time to do so has expired. On or about October 26, 2015, the defendant moved to vacate the judgment of conviction pursuant to CPL 440.10(1)(h) on the ground, inter alia, that he had been deprived of the effective assistance of counsel during his plea by his counsel's incorrect statement to the defendant that he would ...
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals