People v Richards (2019 NY Slip Op 08268) People v Richards 2019 NY Slip Op 08268 Decided on November 14, 2019 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 November 14, 2019 Gische, J.P., Webber, Kern, Moulton, JJ. 689/13 10336A 8/15 10336 [*1] The People of the State of New York, Respondent, vOnandi Richards, Defendant-Appellant. Janet E. Sabel, The Legal Aid Society, New York (Richard Joselson of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Robert C. McIver of counsel), for respondent. Order, Supreme Court, Bronx County (George R. Villegas, J.), entered on or about May 4, 2018, which denied defendant's CPL article 440 motion to vacate a judgment of conviction rendered January 30, 2015 and set aside the sentence, unanimously reversed, on the law, the judgment of conviction vacated, and the matter remanded for further proceedings. Appeal from judgment, same court and Justice, rendered January 30, 2015, convicting defendant, upon his plea of guilty, of robbery in the third degree, and sentencing him to a term of one to three years, unanimously dismissed, as academic. The record of the hearing on defendant's CPL article 440 motion establishes that defendant was denied effective assistance of counsel in regard to immigration-related aspects of plea negotiations (see Padilla v Kentucky, 559 US 356, 373 [2010]; see also Lafler v Cooper, 566 US 156, 162 [2012]). The hearing evidence demonstrated that defense counsel had no strategic reason for his failure to seek a sentence "that would result in same overall aggregate prison time for the defendant, but which would have resulted in no mandatory immigration consequences" (People v Moore, 141 AD3d 604, 606 [2d Dept 2016]; see also People v Guzman, 150 AD3d 1259, 1259-60 [2d Dept 2017]). At the hearing, defense counsel candidly admitted that he did not know, at the time of defendant's plea, what an aggravated felony was, and that he mistakenly believed that defendant's prior youthful offender adjudication, which resulted in a violation of probation charge that was disposed of at the same time as the instant plea, already rendered him deportable. However, New York YO adjudications are not considered criminal convictions for purposes of immigration law (Wallace v Gonzalez, 463 F3d 135, 139, n 3 [2d Cir 2006]). As a result, counsel focused primarily on ensuring that defendant did not serve extra time on the violation of probation, rather than on the immigration consequences of the plea. Accordingly, he did not attempt to obtain a sentence of less than one year on the third-degree conviction, which would have prevented it from being an aggravated felony, subjecting defendant, who is in removal proceedings, to mandatory deportation (see Moncrieffe v Holder, 569 US 184, 187 [2013]; 8 USC §§ 1101[a][43][G], 1227[a][2][A][iii]). Counsel admitted that he had no strategic reason for not doing so; he simply did not know that defendant's negotiated sentence of ...
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