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Court Discusses Deportation of Criminal Defendant

A New York Criminal Lawyer said that in April 2011, defendant was arrested and charged in a felony complaint with Criminal Possession of a Controlled Substance in the Second Degree and other lesser narcotics possession charges based upon his alleged possession of over four ounces of heroin.

A New York Criminal Lawyer said that in May 2011, defendant was charged with one count of Criminal Possession of a Controlled Substance in the Second Degree. On February 2, 2012, based upon his counsel, having worked out a resolution of the case that was acceptable to the People and approved by the Court, defendant consented to waive indictment and to be prosecuted by a superior court information, which charged him with one count of Attempted Criminal Possession of a Controlled Substance in the Fifth Degree.

A New York Criminal Lawyer said after being allocuted by the Court as to waiver of indictment and prosecution by Superior Court information, defendant pled guilty to Attempted Criminal Possession of a Controlled Substance in the Fifth Degree based upon a sentence promise of two years imprisonment and one year of post-release supervision.

In August 2012, the United States Department of Homeland Security, Bureau of Immigration and Customs Enforcement, issued defendant, a resident alien native of the Dominican Republic, a Notice to Appear (NTA) for removal proceedings. The NTA alleges defendant is subject to removal from the United States pursuant to 8 U.S.C. § 1227(a)(2)(C).

Defendant now seeks to have the Court vacate the instant judgment of conviction claiming that his plea violated the New York State Constitution and CPL § 195.10(2)(b) because the waiver of indictment came after he had already been indicted, and that he received ineffective assistance of counsel.

A New York Criminal Lawyer said the defendant contends that his waiver of indictment was ineffective because CPL 195.10(2)(b) requires a waiver to be made before the filing of an indictment by the Grand Jury. However, contrary to defendant’s contention, his waiver, in fact, satisfied the requirements of the Criminal Procedure Law because, when he waived indictment, he was being held for Grand Jury action on a new felony complaint charging him with a new charge of criminal possession of a controlled substance in the fifth degree.

Thus, the fact that he had already been indicted on related charges did not vitiate the waiver of indictment.

A Nassau County Criminal Lawyer said the defendant next argues that plea counsel was ineffective, notwithstanding the beneficial plea and sentence he received, because the lawyer failed to warn him adequately of the immigration consequences of his plea.

In support of his argument, defendant submits with the instant motion affidavits from his sister, and his immigration lawyer. In her affidavit, the sister avers that she has been very involved in her brother’s defense and that she consulted with the lawyer regarding the instant case. According to the sister, the lawyer told her and defendant that a guilty plea to attempted criminal possession of a controlled substance would “preclude deportation”.

A Queens Criminal Lawyer said that according to a case, a criminal defense attorney must provide advice in the specialized area of immigration law in those cases in which the immigration law is succinct, clear, and explicit in defining the removal consequences of a conviction.

Here, however, the text of the federal immigration laws is neither clear nor certain. Unlike the defendant in a case, who pled guilty to felony drug distribution, defendant here pled guilty to simple possession of a quantity of controlled substance.

Indeed, a Nassau County Criminal Lawyer said as noted earlier, even the immigration judge who is assessing defendant’s status believed it necessary to go beyond the text of the statute, and to examine the record of conviction and the indictment, which includes the charge of possession with intent to sell, in order to determine if defendant’s conviction disqualifies him from discretionary cancellation of removal. Quite clearly, if a jurist specializing in immigration law could not determine the deportation consequences of defendant’s guilty plea from a simple reading of the text of the governing federal statutory provisions, it could not be expected that an attorney untrained in immigration law could do so.

Even if the lawyer’s advice regarding the immigration consequences of defendant’s plea renders his representation deficient, defendant has failed to establish that he was prejudiced by any such deficiency. Initially, the Court notes that it warned defendant of the possibility of deportation and that defendant still entered his guilty plea. Thus, if neither the lawyer put defendant on notice that his guilty plea could lead to deportation, the Court clearly did.

Finally, the Court is hard-pressed to see how defendant was prejudiced given the favorable plea bargain that the lawyer obtained on his behalf. Defendant, who received a 2 year determinate sentence, as a predicate felon with a prior violent felony conviction was facing a maximum determinate sentence of 17 years if convicted of the top count in the indictment charging him with criminal possession of a controlled substance in the second degree, an A-II felony.

For the reasons stated above, defendant’s motion to vacate his judgment of conviction is denied in all respects.

Possession of drugs is punishable under the law, but if the evidence relevant to the said crime was obtained through an illegal way, the arresting officer may be held liable. You can consult our Bronx County Drug Crime attorneys on how to pursue the action. We also have Bronx County Criminal lawyers for your other concerns.

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