People v Rodriguez

People v Rodriguez 2018 NY Slip Op 07061 Decided on October 23, 2018 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 23, 2018
Sweeny, J.P., Gische, Tom, Mazzarelli, Kern, JJ.
1580/03 7429 7428

[*1]The People of the State of New York, Respondent,

v

Luis Rodriguez, Defendant-Appellant.

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

Cyrus R. Vance, Jr., District Attorney, New York (Vincent Rivellese of counsel), for respondent.

Appeals from judgment, Supreme Court, New York County (Ronald A. Zweibel, J.), rendered February 26, 2009, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the first degree, and sentencing him to a term of 15 years to life; and from order, same court and Justice, entered on or about April 29, 2009, which denied defendant's motion for resentencing pursuant to the Drug Law Reform Act of 2004, held in abeyance, and the matters remitted for further proceedings in accordance herewith.

Although defendant did not file a CPL 440.10 motion, the existing record is sufficient to review his ineffective assistance of counsel claim (see People v Pequero, 158 AD3d 421 [2018]; People v Doumbia, 153 AD3d 1139 [2017]). 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, and instead merely advised him that deportation was a possibility (see id.).

Defendant should be afforded the opportunity to move to vacate his plea upon a showing that there is a reasonable probability that he would not have pleaded guilty had he been made aware of the deportation consequences of his plea (see id.), and we hold the appeal in abeyance for that purpose.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 23, 2018

CLERK