Hernandez, born in the Dominican Republic, obtained permanent residency in 1997 and had six children from two marriages.
He was indicted in March 2007 for attempted rape. Prior to that indictment, he had pleaded guilty to second-degree assault for a separate incident in 2001 and received probation.
After a lunch break at a suppression hearing, Hernandez's attorney, Joseph Schioppi of Kew Gardens, told Manhattan Acting Supreme Court Justice Edward McLaughlin that Hernandez wanted to plead guilty to first-degree sexual abuse in full satisfaction of the attempted rape indictment.
McLaughlin asked Hernandez if Schioppi had explained the defendant's legal rights and options and Hernandez confirmed that the attorney had done so. But as the dissent pointed out, McLaughlin did not directly ask Hernandez if he had been advised of the immigration consequences of his plea.
McLaughlin also said, "I have no idea what any federal immigration situation would be as a result, if any, of this conviction, but I am suppose[d] to tell you that as well."
Hernandez was sentenced to five years in prison. A federal immigration court ordered his deportation after a hearing at which he said he was innocent and did not want to leave the country because he did not want to be separated from his children.
In his state motion to set aside the conviction, Hernandez said his constitutional right to counsel had been violated by Schioppi's failure to flag the plea's immigration consequences. He insisted he would have opted for trial had he known a guilty plea would lead to deportation.
Schioppi said at a hearing on Hernandez's motion that he did not remember if he had advised Hernandez of the deportation possibility. However, he added that it was not his practice to discuss immigration consequences unless the issue came up in proceedings. Hernandez's attorney on the post-conviction motion stipulated that Schioppi had previously told her his practice at the time was to tell non-citizens with green cards that guilty pleas for felonies "could be used for deportation purposes."
At the hearing, Hernandez denied trying to rape his alleged victim. He admitted physical contact with her but denied touching her due to sexual desire.
Hernandez said he was angry with the woman for previously bringing a man to his apartment and leaving the man alone with his wife. After telling her to leave, she "talked back," and he grabbed her "between her pant and her blouse" and moved her to the apartment door and she left, he said.