I am very happy to announce that we won a 440 appeal in the Appellate Division, Second Department, overturning the denial of our 440 motion by Justice Wong in Queens. See, People v. Pinto, ___ A.D.3d___, (2d Dept. November 17, 2015) 2015 WL 7266251; 2015 Slip. Op. 08441. This victory was also covered on the front page of the New York Law Journal in their November 27, 2015 edition. This case set a precedent which will help many people undo pleas of guilty which are destroying their lives.
We recently won the vacatur of a very old conviction from 1991 by winning an appeal of our motion in the Appellate Division First Department. 2015 Slip. Op. 03044 (April 9, 2015). This decision was based on the competency of the client at the time of the plea and the Court’s failure to follow mental health provisions in the Criminal Procedure Law.
To usher in the New Year we were happy to announce a reversal of a cocaine conviction in the Appellate Division 4th Department. See, Link http://www.laberichman.com/wp-content/uploads/sites/1857/2015/12/1450.pdf
We were able to get this client out of immigration custody by winning a motion to file a late notice of appeal and then we aggressively attacked the conviction with a 440 Motion. When that failed we filed a motion for permission to appeal the 440 denial which was granted by the Fourth Department. We then did a direct appeal and a 440 appeal which ended in the reversal that just occurred. We will go back to Utica to fight this case, and based on the language in this opinion, fortunately, we have a good chance.
We also recently won another motion to file a late notice of appeal in the First Department which freed another individual who had been in immigration custody for months. And, this is something that we have done numerous times in the past. ICE can only hold immigrants who have final convictions and if the case is on direct appeal, their deportation proceedings will be temporarily terminated. This gives a litigant more post-conviction options because the defendant can now raise issues by 440 motion and on direct appeal. This expands the claims that can be raised to a large degree.
In the past couple of years we have also won vacaturs of drug convictions in the Bronx, Brooklyn, Staten Island, Manhattan, and Queens, and we have been able to switch these convictions to offenses that offer immigrants a chance at cancellation of removal and citizenship. A discussion of our victories from earlier years can be found under our conviction attack heading above. Remember, however, that past-victories do not mean that we will win your case or even be able to file a motion to vacate. Every case is different and involves an application of unique facts to the applicable law.
And, even though Padilla v. Kentucky is not retroactive, we have been able to find errors that have allowed us to at least vacate and switch convictions to crimes that do not involve mandatory deportation and a lifetime bar to citizenship. Recently, we won such a motion, on an ecstasy sale case where the defendant was not told that he had a defense that, although he gave the drugs to the undercover, which is technically a sale in New York, he was only doing so as an agent of the buyer, and was not guilty of trafficking under New York law. This saved his life in the United States with his family and Padilla was not used at all.