Defendant Steven Dilone has moved pro se to vacate the judgment of conviction pursuant to CPL §440.10(1)(h). For the reasons that follow, a hearing is ordered.BackgroundThe First CaseThe People alleged in the felony complaint that on May 22, 2013, at approximately 4:45 PM, at the corner of Kingsbridge Road and Jerome Avenue in Bronx County, defendant sold crack-cocaine to an undercover police officer. On November 26, 2013, defendant waived prosecution by indictment and pled guilty under SCI No. 3441-2013 to one count of Criminal Sale of a Controlled Substance in the Third Degree, PL §220.39 (Plea Mins of 11/26/13 at 3, 4, 5, 6, 8, 10, 12, 14) (attached hereto as Exhibit A). If defendant fully and truthfully cooperated with the Department of Probation, did not commit any new crimes between the date of the plea and the date of sentence and appeared for sentence, defendant was promised a sentence of five years’ probation and a youthful offender adjudication (id. 3). The case was adjourned to January 2, 2014 for sentence (id. at 15) and was adjourned several times thereafter.On March 26, 2014, defendant was arrested and charged with Criminal Sale of Marijuana in the Fourth Degree (Sentence Mins of 6/13/14 at 3) (attached hereto as Exhibit B). He pled guilty to that misdemeanor on June 13, 2014 and was immediately sentenced, as a youthful offender, to 45 days’ jail to run concurrently with the sentence on the felony drug sale (id. at 3, 5, 6, 8). The court declined to adjudicate defendant a youthful offender on that felony, sentencing him to one year (id. at 3, 4, 8). During these proceedings, defense counsel told the court that defendant “tells me he is a U.S. citizen[ ]” (id. at 5).The Instant CaseThe People alleged in the felony complaint that on November 10, 2014, at approximately 8:26 AM, in front of 18 East 198th Street in Bronx County, defendant shot Nelson Rivera in the foot with a pistol while a small child stood less than four feet from Rivera. On December 19, 2014, defendant was charged in Indictment No. 3720-2014 with Attempted Assault in the First Degree (PL §§110/120.10[1]), Assault in the Second Degree (PL §120.05[2]), two counts of Criminal Possession of a Weapon in the Second Degree (PL §§265.03[1][b], [3]), Criminal Possession of a Weapon in the Third and Fourth Degrees (PL §§265.02[1], 265.01[1]) and Criminal Possession of a Firearm (PL §265.01-[b][1]). On April 19, 2016, defendant pled guilty to one count of Assault in the Second Degree (PL §120.05[4]) in full satisfaction of these charges.1 Defendant was also arraigned as a predicate felon based on his conviction for Criminal Sale of a Controlled Substance in the Third Degree (PL §220.39[1]) in the first case. In exchange for this plea, the promised sentence was a determinate prison term of three years, followed by five years’ post-release supervision (“PRS”), to run concurrently with a sentence of one year imposed following defendant’s plea of guilty on January 27, 2016, to Criminal Possession of a Controlled Substance in the Fourth Degree (PL §220.09[6]) under SCI No. 68-2016 (the “third case”).2 On May 9, 2016, this court imposed the promised sentence.The Immigration ProceedingsThe People state thatAccording to documentation provided by the U.S. Department of Homeland Security, defendant is a native of the Dominican Republic and a citizen of the Dominican Republic. He was admitted to the United States at New York, New York on or about December 4, 2006 as a lawful permanent resident. He was served a Notice to Appear on March 1, 2017, which charged him subject to removal from the United States on the basis of his conviction under Superior Court Information Number 68/2016 for Criminal Possession of a Controlled Substance in the Fourth Degree (Penal Law §220.09[6]), an aggravated felony offense, as well as his conviction in the present case, a controlled substance offense [sic].3On November 6, 2017, the Immigration Judge in defendant’s removal proceedings found that removability was established by clear, convincing, and unequivocal evidence. Defendant was, however, found eligible to file for Witholding of Removal and Deferral of Removal — Convention Against Torture. Defendant was given the application documents with a filing deadline of January 5, 2018, and he was told that a failure to file could result in an order of removal without further notice or proceedings. Defendant failed to file the documents. On January 5, 2018, defendant was ordered removed from the United States. Defendant was given an appeal date of February 5, 2018.. .On April 10, 2018, the Board of Immigration Appeals issued a letter stating that defendant’s appeal had been withdrawn…According to a representative from the ERO New York Field Office of United States Immigration and Customs Enforcement, defendant was removed to the Dominican Republic on May 1, 2018.(Peo’s Aff in Opp pp 5-6.)The Parties’ ContentionsDefendant argues that he was “denied effective assistance of counsel” when his attorney “failed to properly advise him of the ‘Immigration Consequences’ that would result from his guilty plea” (Def Aff 1). He claims that his attorney told him that he “would not have immigration problems” yet he is now subject to mandatory deportation (Def Statement of Facts
