An undercover police officer posed as a buyer of cocaine which was clandestinely sold at a fast food joint. The undercover police officer was able to buy six small bags of cocaine on six separate occasions. With the cocaine bought from the fast food joint, the police officers had probable cause to apply for a search warrant and to arrest the employees of the fast food joint.
A New York Criminal Lawyer said the police officers arrested the workers of the fast food joint and they searched the fast food joint and found seventy-eight bags re-sealable bags filled with white powdery substance which was later tested and found to be cocaine. The seventy-eight bags of cocaine were located in various areas of the fast food joint and some were found in the pockets of the employees of the fast food joint.
The Grand Jury handed down an indictment of twenty-one counts of criminal cocaine possession (drug possession) and sale. After the arraignment, the manager of the fast food joint was told by his lawyer that under the laws in effect at that time, the sentence he would most likely be given if proven guilty would be one to three years for every count which would amount to an indeterminate sentence of about eight to twenty-five years.
The manager’s counsel was able to negotiate with the district attorney a plea bargain which entitled the manager to five years’ probation without any jail time. The manager accepted the plea bargain. He was found guilty and sentenced to five years’ probation. He did not appeal his conviction. When the manager met with the probation officer assigned to his case, he admitted his guilt and also admitted that he committed the crime of criminal cocaine possession and sale to gain profit. This was written in the probation officer’s report and submitted to the court.
Before the trial court accepted the plea bargain, the court lengthily interviewed the manager in open court asking him if he understood what the plea bargain meant. He asked the manager if he knew that he was admitting guilt of the crime charged in exchange for a lenient sentence. The court informed the manager that by pleading guilty and not going through trial, he was waiving any question on the issue of probable cause of his arrest or of the search conducted in the fast food joint or of the seizure of the drugs from him. The Court informed him that by not going through trial, he would not have the opportunity to question the admission of evidence against him. The court also asked him if he had been pressured to accept a plea bargain and he answered that no one pressured him. The court also warned the manager that if failed to return to court for sentencing or if he failed to cooperate and coordinate with his probation officer he would be sentenced to five years’ imprisonment for each and every count of the indictment that he pleaded guilty to. Convinced that the plea bargain was entered into was voluntarily and knowingly entered into by the manager, the court accepted the plea bargain.
Thirteen years after pleading guilty to the crime of criminal cocaine possession and sale and receiving a light sentence of five years’ probation, the manager asks the court to vacate his conviction. A Manhattan Criminal Lawyer said he claims that he received a notice from the Department of Immigration that because of his conviction of a crime his status as permanent resident was in danger of being revoked. The manager claims that his lawyer did not inform him that a conviction for a crime would result in his permanent resident status being revoked. He claims that he only entered the plea bargain because he had run out of money with which to pay his lawyer and he was told by his lawyer that if pleaded guilty, not only would he not serve any jail time, he would also effectively put an end to the case and so, relieve himself of the onerous legal fees he had to pay.
The only question in this motion filed by the manager is whether or not the manager received effective assistance of counsel.
The Court held that there are two considerations which must be weighed before a lawyer’s actions may be said to have been ineffective: first, the manager must show that the lawyer’s conduct and performance was deficient; second, the manager must also show that the deficient performance of the lawyer prejudiced the defence of the manager.
The Court held that the lawyer’s failure to inform the manager that a criminal conviction would result in the revocation of his permanent residency status and deportation clearly shows that his performance of his duty as defence counsel for the manager.
However, the Court ruled that there is no showing that the lawyer’s deficient performance prejudiced the manager. A New York City Criminal Lawyer said the manager has never protested his innocence and he offered no proof that had he not pleaded guilty and the case proceeded to trial, he had credible evidence to prove his innocence.
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