PEOPLE v. DISLA (2019)

Appeal from judgment, Supreme Court, New York County (Bruce Allen, J.), rendered February 20, 2013, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the third degree, and sentencing him to a term of 21/212 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 when his counsel failed to advise him that his guilty plea to an aggravated felony would result in mandatory deportation (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.  While defendant requests that his conviction be replaced by a conviction under a different subdivision of Penal Law § 220.16 that may entail less onerous immigration consequences, we find that to be an inappropriate remedy, and we instead order a hearing.