People v. Mebuin

*1 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.*2

ELLEN 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, — US —, 137 S Ct 1958, 1966, [2017]; People v. Peque, 22 NY3d 168, 183 [2013], cert denied sub nom Thomas v. New York, — US —, 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.BackgroundDefendant, 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