PEOPLE, res, v. MOUSSA DOUMBIA, def-ap

4269. PEOPLE, res, v. MOUSSA DOUMBIA, def-ap — Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno of counsel), for ap — Cyrus R. Vance, Jr., District Attorney, New York (Philip Morrow of counsel), for res — Appeal from judgment, Supreme Court, New York County (Renee A. White, J.), rendered April 2, 2013, as amended September 11, 2013, convicting defendant, upon his plea of guilty, of attempted robbery in the second degree, and sentencing him to a term of two years, held in abeyance, and the matter remanded for further proceedings in accordance herewith.

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4269. PEOPLE, res, v. MOUSSA DOUMBIA, def-ap — Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno of counsel), for ap — Cyrus R. Vance, Jr., District Attorney, New York (Philip Morrow of counsel), for res — Appeal from judgment, Supreme Court, New York County (Renee A. White, J.), rendered April 2, 2013, as amended September 11, 2013, convicting defendant, upon his plea of guilty, of attempted robbery in the second degree, and sentencing him to a term of two years, held in abeyance, and the matter remanded for further proceedings in accordance herewith.

The existing, unexpanded record is sufficient to establish that defendant received ineffective assistance of counsel. Defendant was deprived of effective assistance when his counsel failed to advise him that his guilty plea to an aggravated felony would result in mandatory deportation. Since an aggravated felony results in mandatory deportation (see People v. Corporan, 135 AD3d 485, 486 [1st Dept 2016] [a guilty plea to an aggravated felony "triggered mandatory deportation under federal law"], counsel is under a duty to provide clear advice as to that consequence. It is thus ineffective assistance to advise a noncitizen of a mere risk or possibility that he “could be deported” (see e.g. United States v. Bonilla, 637 F3d 980, 984 [9th Cir 2011] ["(a) criminal defendant who faces almost certain deportation (for committing an aggravated felony) is entitled to know more than that it is possible that a guilty plea could lead to removal; he is entitled to know that it is a virtual certainty"]; Encarnacion v. State, 295 Ga 660, 663 [Ga 2014] ["where, as here, the law is clear that deportation is mandatory (for the aggravated felony of burglary) ... an attorney has a duty to accurately advise his client of that fact" and it is not sufficient that the client is merely advised deportation might occur or was a risk of conviction]).

PEOPLE, res, v. MOUSSA DOUMBIA, def-ap

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