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People v. Mebuin

Supreme Court of New York, First Department

December 28, 2017

The People of the State of New York, Respondent,
v.
Reuel Mebuin, Defendant-Appellant.

         Defendant 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.

          Robert S. Dean, Center for Appellate Litigation, New York (Robin Nichinsky of counsel), for appellant.

          Cyrus R. Vance, Jr., District Attorney, New York (Katherine Kulkarni and Patrick J. Hynes of counsel), for respondent.

          John W. Sweeny, Jr., J.P., Karla Moskowitz, Marcy L. Kahn, Ellen Gesmer, JJ.

          OPINION

          GESMER, J.

         Both 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, [2017]; People v Peque, 22 N.Y.3d 168, 183 [2013], 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 [2014]). 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.

         Background

         Defendant, 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 in 2004.

         In 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.

         On 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 issue."

         Defendant 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[1]). 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[3]), although it was not necessary to the plea agreement. Defendant's attorney did not object.

         The 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?"

         Defendant answered, "I do."

         Two 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 understand ...


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