PEOPLE v. JOHNSON (2018)

Judgment, Supreme Court, Bronx County (William I. Mogulescu, J.), rendered June 10, 2014, convicting defendant, upon his plea of guilty, of burglary in the first degree and robbery in the first degree, and sentencing him to an aggregate term of six years, held in abeyance and the matter 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 A.D.3d 421, 67 N.Y.S.3d 813 [2018];  People v. Doumbia, 153 A.D.3d 1139, 60 N.Y.S.3d 157 [2017] ).  Defendant was deprived of effective assistance of counsel 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 his plea would have “immigration consequences,” would “impact his ability to stay in the country” and “will probably very well end up with [defendant] being deported from this country” (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 this appeal in abeyance for that purpose.

The court properly denied defendant's motion to suppress a lineup identification.  The lineup was not unduly suggestive, because defendant and the fillers, who all fit the victim's description of his assailant, were reasonably similar in appearance, and there was no substantial likelihood that defendant would be singled out (see People v. Jackson, 98 N.Y.2d 555, 559, 750 N.Y.S.2d 561, 780 N.E.2d 162 [2002];  People v. Chipp, 75 N.Y.2d 327, 336, 553 N.Y.S.2d 72, 552 N.E.2d 608 [1990], cert denied 498 U.S. 833, 111 S.Ct. 99, 112 L.Ed.2d 70 [1990] ).

We perceive no basis for reducing the sentence.