PEOPLE v. PAN (2024)

Appeal from judgment, Supreme Court, New York County (Diane Kiesel, J.), rendered June 21, 2022, convicting defendant, upon his plea of guilty, of assault in the first degree and endangering the welfare of a child, and sentencing him to an aggregate term of 18 years, unanimously reversed, on the law, defendant's motion to withdraw and vacate his plea granted, and the matter remanded for further proceedings in accordance herewith.

The People concede that defendant's right to counsel was violated by the court's ruling improperly prohibiting defendant from retaining an unpaid attorney who worked at a public defender organization which represented him on a related matter (see People v. Arroyave, 63 A.D.2d 127, 132, 407 N.Y.S.2d 15 [1st Dept. 1978], mod on other grounds 49 N.Y.2d 264, 270–271, 425 N.Y.S.2d 282, 401 N.E.2d 393 [1980]), and by the conflict of interest between assigned counsel and defendant that arose from counsel's disparaging statements, in court and in written submissions, about defendant and his possible defense of accidental stabbing.

Defendant was also deprived of effective assistance when his counsel advised him that because of his plea, he will most likely be deported, since it is clear that defendant's conviction would trigger mandatory deportation (see Padilla v. Kentucky, 559 U.S. 356, 368–369, 130 S.Ct. 1473, 176 L.Ed.2d 284 [2010];  Singh v. Barr, 939 F.3d 457 [2d Cir. 2019];  People v. Pequero, 158 A.D.3d 421, 67 N.Y.S.3d 813 [1st Dept. 2018]).  The remarks made by counsel on the record to the judge, as to what he advised his client with regard to the immigration consequences of his plea, are sufficient to permit review on direct appeal (see People v. Doumbia, 153 A.D.3d 1139, 60 N.Y.S.3d 157 [1st Dept. 2017]).  Because we find defendant received ineffective assistance of counsel, it cannot be said that defendant voluntarily, knowingly, and intelligently entered his plea of guilty.  We hereby vacate defendant's plea, and the case is remanded to permit defendant to proceed with new counsel.