appeals from the order of the Supreme Court, New York County
(Bonnie G. Wittner, J.), entered on or about July 31, 2013,
which denied his CPL 440.10 motion to vacate a judgment of
conviction rendered February 17, 2010.
S. Dean, Center for Appellate Litigation, New York (Robin
Nichinsky of counsel), for appellant.
R. Vance, Jr., District Attorney, New York (Katherine
Kulkarni and Patrick J. Hynes of counsel), for respondent.
W. Sweeny, Jr., J.P., Karla Moskowitz, Marcy L. Kahn, Ellen
the United States Supreme Court and the New York Court of
Appeals have recognized that, for many noncitizens,
deportation may be as dire a consequence of conviction as
incarceration (see e.g. Lee v United States, - U.S.
-, 137 S.Ct. 1958, 1966, ; People v Peque, 22
N.Y.3d 168, 183 , cert denied sub nom Thomas v New
York, - U.S. -, 135 S.Ct. 90');">135 S.Ct. 90');">135 S.Ct. 90');">135 S.Ct. 90 ). In this appeal
from the summary denial of his CPL 440.10(1)(h) motion,
defendant contends that his counsel provided him ineffective
assistance by misadvising him as to the deportation
consequences of a misdemeanor guilty plea. Because
defendant's allegations are sufficient to warrant a
hearing, we hold that the motion court abused its discretion
by summarily denying defendant's motion, and we remit the
matter for further proceedings.
a citizen of the Republic of Cameroon, arrived in the United
States in 1995 and was granted asylum in 1998, reflecting a
finding that he had a well-founded fear of persecution if he
returned to Cameroon. He became a lawful permanent resident
2009, defendant was indicted on two counts of the class D
felony of sexual abuse in the first degree for having
allegedly touched the private parts of his
ex-girlfriend's two minor daughters.
February 5, 2010, defendant appeared before the court with
his counsel. The People offered a sentence of a conditional
discharge if defendant pleaded guilty to the class A
misdemeanor of endangering the welfare of a child. When the
court asked defendant if he was going to agree to take the
plea that day, they had the following exchange:
DEFENDANT: "Your honor, I very much want to plead
guilty, but I am so concerned with the-
THE COURT: "You're what?... I am not your lawyer,
you have a lawyer. I am just the judge. You tell me if you
want the plea, and I will tell you what the consequences will
be, but I can't help you with your immigration problems.
THE COURT: "[I]t's a very good offer, and if you get
convicted of a felony you will still have the deportation
accepted the People's offer. Accordingly, the court
allocuted defendant to establish that he had acted in a
manner injurious to the physical, mental, or moral welfare of
his ex-girlfriend's two daughters, the elements of
endangering the welfare of a child (Penal Law §
260.10). The court then allocuted defendant as to whether
he had touched the children inappropriately on their private
parts, which established the elements of sexual abuse in the
first degree (Penal Law § 130.65), although it was
not necessary to the plea agreement. Defendant's attorney
did not object.
court then stated: "Just one other thing I want to tell
you that you're pleading in State court to a misdemeanor,
however, this has nothing to do with your immigration status
which is not decided by me. It will be decided in another
venue do you understand that?"
answered, "I do."
weeks later, defendant appeared with counsel and pleaded
guilty to one count of endangering the welfare of a child.
The court again allocuted defendant as to whether he had
acted in a manner injurious to one of his ex-girlfriend's
daughters, and then incorporated, by reference, the full
factual allocution that it had taken previously. During this
appearance, the court stated: "This plea could affect
your immigration status. I have no control over that.
That's determined by the federal government. Do you