QUESTION
How can I re-open a case that I plead guilty in because my attorney didn't give me all the correct information?
Asked on Feb 04th, 2013 on Criminal Law - New York
More details to this question:
I was told to plead guilty by my attorney who said he will ask for probation. By doing so that has got me in a position of my status, because my attorney did not ask me about my legal status. So I am asking for help to reopen the case.
2 ANSWERS
John J. Carney
If you are not a citizen and the judge and your attorney did not tell you that the conviction could effect your immigration status you can probably withdraw your plea under the Padilla v. Kentucky Supreme Court decision. That does not mean you should go to trial instead of taking the plea, it means that you need a good lawyer to advise you if you should proceed to trial or keep your plea.If the judge and your lawyer did not ask you about whether your lawyer discussed the immigration consequences they were both wrong and you were probably in a small town where the judges and lawyers are not as experienced.
Answered on Feb 20th, 2013 at 9:30 PM
You need to file what's called a "Motion to Vacate" which is a motion made to the court to vacate the guilty plea made. Because you were not informed about what implications there might be by pleading guilty in regards to your legal status, you may have a case to get it vacated. You have to understand, however, that vacating the plea only removes your guilty plea and puts you back in the position of having to defend the original case. So if you proceed to trial on the original charges, and are found guilty, you may suffer from a tougher punishment than the one sentenced as part of your original plea. You should speak to an attorney about filing the motion to vacate as there is a very specific process that must be followed in order for it to be heard.
Answered on Feb 06th, 2013 at 3:26 PM
Seth D. Schraier, Esq. Law Office of Seth Schraier 3647 Broadway Suite 4G New York, New York 10031 Cell: (914) 907-8632 www.SchraierLaw.com