        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

293
KA 12-02016
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, NEMOYER, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                               MEMORANDUM AND ORDER

GARTH O. BENNETT, DEFENDANT-APPELLANT.


MARK D. FUNK, ROCHESTER, FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL),
FOR RESPONDENT.


     Appeal, by permission of a Justice of the Appellate Division of
the Supreme Court in the Fourth Judicial Department, from an order of
the Supreme Court, Monroe County (Francis A. Affronti, J.), dated
March 7, 2012. The order denied the motion of defendant to vacate a
judgment of conviction pursuant to CPL 440.10.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law and the matter is remitted to Supreme
Court, Monroe County, for further proceedings in accordance with the
following memorandum: On appeal from an order summarily denying his
pro se motion pursuant to CPL 440.10 seeking to vacate the judgment
convicting him, upon his plea of guilty, of four counts of robbery in
the second degree (Penal Law § 160.10 [1]; [2] [b]), defendant
contends that Supreme Court should have conducted a hearing on the
motion pursuant to CPL 440.30 (5). We agree. In support of his
motion, defendant, who is not a United States citizen, submitted an
affidavit in which he asserted that his attorney advised him prior to
the plea that “there is no way in the world” that he would be deported
as a result of his plea because he was being sentenced to less than
five years in prison. Defendant further asserted that he would not
have pleaded guilty had he been properly advised of the deportation
consequences of the plea. According to defendant, he was deported to
Jamaica after serving his term of imprisonment.

     As the Court of Appeals has held, an affirmative misstatement of
the law regarding the deportation consequences of a plea may provide a
basis for vacatur of the plea if it can be shown that the defendant
was thereby prejudiced, i.e., there is a reasonable probability that
the defendant would not otherwise have pleaded guilty (see People v
McDonald, 1 NY3d 109, 115; People v Argueta, 46 AD3d 46, 50, lv
dismissed 10 NY3d 761). Here, we conclude that defendant’s sworn
assertions, if true, entitle him to relief and, because it cannot be
said that his assertions are incredible as a matter of law, a hearing
                                 -2-                           293
                                                         KA 12-02016

is required. We reject the People’s contention that the court
properly denied the motion because defendant failed to submit an
affidavit from his former attorney corroborating his claim (see People
v Pinto, 133 AD3d 787, 790; People v Washington, 128 AD3d 1397, 1399).
Where, as here, defendant’s “application is adverse and hostile to his
trial attorney,” it “is wasteful and unnecessary” to require the
defendant to secure an affidavit from counsel, or to explain his
failure to do so (People v Radcliffe, 298 AD2d 533, 534; see
Washington, 128 AD3d at 1399). Moreover, contrary to the People’s
further contention, defendant’s assertion that he would not have
pleaded guilty if he had been properly advised regarding deportation
is sufficient to raise an issue of fact whether he was prejudiced by
counsel’s alleged error (see People v Ricketts-Simpson, 130 AD3d 1149,
1151-1152; People v Oouch, 97 AD3d 904, 905-906).

     We therefore reverse the order and remit the matter to Supreme
Court for a hearing on the motion, i.e., to determine whether, as
defendant has alleged, defense counsel assured him that he would not
be deported as a result of his plea, and, if so, whether there is a
reasonable probability that defendant would not have pleaded guilty if
he had been properly advised of the deportation consequences.

     Finally, we note that the People have not moved to dismiss the
appeal on the ground that defendant has been deported and, although we
have discretion to dismiss a permissive appeal in these circumstances
(see People v Harrison, ___ NY3d ___, ___ [May 5, 2016]), we decline
to exercise our discretion to do so.




Entered:   May 6, 2016                          Frances E. Cafarell
                                                Clerk of the Court
