440 Hearing Ordered for Ineffective Assistance of Counsel Claim
In 2007, Mr. Alexander, a native of Saint Lucia, pled guilty to fourth-degree criminal possession of a weapon and third-degree assault, and received a two-year prison term. Mr. Alexander subsequently filed a motion pursuant to C.P.L. § 440.10(1)(h) to vacate his conviction on the ground that his counsel was ineffective for giving him incorrect advice about the immigration consequences of the plea and for not attempting to negotiate a plea with less severe consequences. Mr. Alexander affirmed that his attorney told him his plea would not affect his immigration status, despite the assault conviction being an “aggravated felony” under federal immigration law that rendered him mandatorily deportable. The trial court denied the 440 motion without a hearing. The Appellate Division reversed the order and remitted for a hearing, finding that Mr. Alexander’s contentions were not contradicted by the record, but were arguably supported by representations made by defense counsel at a court appearance indicating counsel’s unfamiliarity with immigration defenses. In addition, the Appellate Division concluded that Mr. Alexander was entitled to a hearing to determine whether he received ineffective assistance of counsel based on the failure to negotiate a more favorable plea. Accordingly, the case was remitted for a hearing and new determination.
Tammy E. Linn represented Mr. Alexander
