C.P.L. 440 Ruling Reversed
When he was 17 years old, Jamaican immigrant Tremain Moore was charged with various crimes in two separate indictments. To satisfy one of the indictments, he pled guilty to second-degree burglary, was adjudicated a youthful offender, and received a sentence of 1 1/3 to 4 years. To satisfy the other indictment, he pled guilty to fourth-degree grand larceny. He was not granted youthful offender treatment for that conviction and was sentenced to 1 to 3 years, to run concurrently with the burglary sentence.
As a “theft offense” for which he was sentenced to “at least one year,” Mr. Moore's grand larceny conviction constituted an aggravated felony that rendered him mandatorily deportable. Had he been sentenced to 364 days (instead of 1 to 3 years) for grand larceny, the conviction would not have been an aggravated felony and his aggregate sentence would not have been affected. The potential immigration consequences of the defendant’s convictions were not discussed at the plea or sentencing.
A C.P.L. 440 motion filed by Appellate Advocates alleged, inter alia, that counsel was ineffective for failing to advocate for an immigration-safe sentence, but the motion was denied.
The Appellate Division, Second Department, held that this branch of the C.P.L. 440 motion should have been granted because there was no strategic reason for counsel’s “failure to advocate for a sentence that would result in the same overall aggregate prison time for the defendant, but which would have resulted in no mandatory immigration consequences.”
Mark Vorkink, who represented Mr. Moore in connection with his C.P.L. 440 motion, briefed and argued the case in the Second Department on behalf of Appellate Advocates.