Virginia Immigration Lawyer Consequences Criminal Guilty Plea Maryland

Virginia Immigration Lawyer Consequences Criminal Guilty Plea Maryland

People v Bennett, 2010 NY Slip Op 20194, 6 (N.Y. City Crim. Ct. May 26, 2010)

Mr. Bennett was arrested on June 16, 2005 based upon allegations that the police discovered a ziplock bag containing a large quantity of marijuana located below the seat of a car occupied by the defendant. On December 14, 2005, the defendant pleaded guilty to PL 221.10 (2), criminal possession of marijuana in the fifth degree, in exchange for a conditional discharge and seven days of community service. The defendant did not file a direct appeal of his conviction. In his affidavit, Mr. Bennett claims that his plea was not voluntary because it was entered into based upon affirmative misrepresentations and omissions of information by his attorney concerning the immigration consequences of the plea. Specifically, the defendant claims that prior to entering his guilty plea, he informed his court-appointed attorney, Jeffrey Pogrow, Esq., that he had a previous violation for marijuana possession and that his mother had filed a petition on his behalf to adjust to permanent lawful residence in the United States.

The Court held that "Based on prevailing professional norms, an attorney must advise his or her client regarding the risk of deportation before a guilty plea. Further, it stands to reason that in a city as diverse as New York, with a large number of noncitizens residing therein, the provision of advice concerning the possibility of deportation as a specific consequence of a conviction would at least be as normative and commonplace as anywhere else in the United States. To wit, the New York State Bar Association has been publishing articles advising criminal attorneys to study and advise their clients regarding the immigration consequences of guilty pleas and criminal convictions since 1989.

The New York State legislature is also grappling with this issue. Currently, there is a bill pending before the New York State Assembly to amend the CPL to require a court advisement of the possible immigration consequences of a conviction (2010 NY Assembly Bill A04957.

Accepting the defendant's allegations as true, he has alleged sufficient facts to warrant a hearing as to whether Attorney Pogrow incorrectly advised him, or failed to advise him at all, regarding the specific immigration consequences of his guilty plea.

The defendant alleges that his mother had filed an immigration petition on his behalf to adjust to permanent lawful residence, and that prior to entering his plea, he was concerned about whether a conviction would negatively impact his application and immigration status in the United States. These facts, if proven, are sufficient to meet the second prong of Strickland."

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