People v Bernard (2021 NY Slip Op 03601) People v Bernard 2021 NY Slip Op 03601 Decided on June 9, 2021 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on June 9, 2021 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department HECTOR D. LASALLE, P.J. CHERYL E. CHAMBERS BETSY BARROS ANGELA G. IANNACCI, JJ. 2016-08012 2016-08155 [*1]The People of the State of New York, respondent, vDarren Bernard, appellant. (Ind. Nos. 10980/97, 10644/02) Paul Skip Laisure, New York, NY (Michael Arthus of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Joseph N. Ferdenzi, and Josette Simmons McGhee of counsel), for respondent. DECISION & ORDER Appeals by the defendant, by permission, from (1) an order of the Supreme Court, Queens County (Barry Kron, J.), dated January 12, 2016, which denied, without a hearing, his motion pursuant to CPL 440.10 to vacate two judgments of the same court (Fernando Camacho, J.), both rendered August 23, 2011, convicting him of criminal sale of a controlled substance in the fifth degree under Indictment No. 10980/97, and bail jumping in the first degree under Indictment No. 10644/02, upon his pleas of guilty, and imposing sentences, and (2) an order of the same court (Barry Kron, J.) dated April 29, 2016. ORDERED that the order dated January 12, 2016, is reversed, on the law, and the matter is remitted to the Supreme Court, Queens County, for a hearing and a new determination thereafter of the defendant's motion pursuant to CPL 440.10 to vacate the judgments rendered August 23, 2011; and it is further, ORDERED that the appeal from the order dated April 29, 2016, is dismissed as academic in light of our determination on the appeal from the order dated January 12, 2016. On August 23, 2011, the defendant, a citizen of Trinidad and Tobago and lawful permanent resident of the United States, pleaded guilty to criminal sale of a controlled substance in the fifth degree under Indictment No. 10980/97 and bail jumping in the first degree under Indictment No. 10644/02, and was sentenced to time served. In April 2013, the United States Department of Homeland Security initiated a removal proceeding against the defendant on the ground, inter alia, that his conviction of criminal sale of a controlled substance in the fifth degree was a deportable offense. In October 2015, the defendant moved pursuant to CPL 440.10 to vacate the judgments of conviction, contending that he was denied the effective assistance of counsel by his attorney's alleged failure to advise him of the clear immigration consequences of his pleas. In an order dated January 12, 2016, the Supreme Court denied the motion without conducting a hearing. The defendant appeals. A defendant has the right to the effective assistance of counsel, guaranteed under both [*2]the federal and state constitutions (see US Const Amend VI; …
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