Underlying case: Ineffective Assistance of Counsel, Criminal Defense
Facts: Defendant pled guilty to third-degree distribution of a controlled substance within 1000 feet of a school, and was sentenced to 5 years probation. Approximately three years later, defendant filed suit against his former attorney alleging ineffective assistance of counsel. More specifically, he alleged that his attorney failed to discuss with him the deportation consequences of his guilty plea.
The lower court denied defendant’s petition for ineffective assistance of counsel and he appealed.
Issue: Does the failure to provide any advice with regard to deportation consequences of a guilty plea constitute ineffective assistance of counsel?
Ruling: Yes. The Appellate Division granted defendant an evidentiary hearing as to the content and scope of his former attorney’s advice, if any, regarding his potential removal from the country upon entering a guilty plea and noted:
Silence under these circumstances would be fundamentally at odds with the critical obligation of counsel to advise the client of the advantages and disadvantages of a plea agreement…When attorneys know that their clients face possible exile from this country and separation from their families, they should not be encouraged to say nothing at all.
Lesson: Attorneys have an affirmative obligation to discuss the possibility of deportation when providing advice about the pros and cons of entering a guilty plea. Going forward, before a non-citizen defendant pleads guilty to a deportable offense, the Court must hold a hearing as to whether the defendant in a criminal case received the effective assistance of counsel.