Opinion
11719 11719A Ind. 4734/16
06-25-2020
The PEOPLE of the State of New York, Respondent, v. QINGHUA NI, Defendant–Appellant.
Siegle & Sims L.L.P., New York (Eric W. Siegle of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Samuel Z. Goldfine of counsel), for respondent.
Siegle & Sims L.L.P., New York (Eric W. Siegle of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Samuel Z. Goldfine of counsel), for respondent.
Renwick, J.P., Mazzarelli, Webber, Kern, Moulton, JJ.
Appeal from judgment, Supreme Court, New York County (Ruth Pickholz, J.), rendered January 23, 2019, convicting defendant, after a jury trial, of 74 counts of criminal possession of a forged instrument in the second degree, 2 counts of criminal possession of stolen property in the fourth degree, and 1 count of grand larceny in the third degree, and sentencing him to an aggregate term of 1 to 3 years, unanimously dismissed, as abandoned. Order, Supreme Court, New York County (Ruth Pickholz, J.), entered on or about September 26, 2018, which summarily denied defendant's CPL 440.10 motion to vacate the judgment on the ground of ineffective assistance of counsel, unanimously reversed, on the law, and the matter remanded for a hearing.
A defense attorney's performance is deficient as a matter of law where he or she fails to accurately advise a client of the risk of deportation (see Padilla v. Kentucky, 559 U.S. 356, 367–74, 130 S.Ct. 1473, 176 L.Ed.2d 284 [2010] ). Here, defendant complains that his counsel overstated the immigration consequences of accepting an offer of a guilty plea to petit larceny by advising him that it would "definitely" result in deportation, when in fact it would only have rendered him deportable with the possibility of discretionary relief. Thus, defendant asserts that he rejected a favorable plea offer based on erroneous advice that the conviction would result in mandatory deportation.
We find that a hearing is necessary to determine whether counsel inaccurately advised defendant of the risk of deportation and if so, whether defendant was prejudiced by the attorney's misadvice ( People v. Martinez, 180 A.D.3d 190, 117 N.Y.S.3d 199 [1st Dept. 2020] ; see also Lee v. United States, 582 U.S. ––––, 137 S Ct 1958, 1966, 198 L.Ed.2d 476 [2017] ). Because we are remanding for a hearing, we find it unnecessary to reach the parties' arguments regarding the proper remedy for a finding of ineffective assistance of counsel.
Although defendant filed a timely notice of appeal from the underlying judgment of conviction, and that appeal was consolidated with the appeal from the order which denied the CPL 440.10 motion, defendant has not made any arguments relating to the direct appeal.