Successful Withdrawal of Guilty Plea – CPL 440.10 Motion


July 2, 2019


Client With DACA Status Allowed to Withdraw a Previous Guilty Plea to DWAI (Driving While Ability Impaired)

The Law Office of Ali Najmi was successful in persuading the Manhattan District Attorney’s Office and Manhattan Criminal Court to allow our client, a “Dreamer” and recipient of DACA, to withdraw a previously entered plea of guilty to VTL 1192(1) Driving While Ability Impaired, because of a prior attorney’s ineffective assistance of counsel at the time of entering the plea.

In order to qualify and/or renew DACA, an applicant cannot have a conviction of what is considered a “significant misdemeanor.” The definition for “significant misdemeanor” includes all of New York’s alcohol related driving offenses, both “impaired” and “intoxicated” statutes. For purposes of DACA, a significant misdemeanor under Immigration Law includes Driving While Ability Impaired (DWAI) (VTL §1192(1)), despite the fact that this offense is only a violation and not a misdemeanor under New York’s Penal Law.

In the present case, our client’s previous attorney failed to inform him of the immigration consequences of his plea, and made an affirmative misrepresentation about the consequences to the client by telling him that such a plea would not affect his DACA status or make him deportable. Our client would not have accepted the plea offer if he was properly advised. Our client came to our office in desperation after learning he would not be able to renew his DACA status because of this plea.

The right to effective assistance of counsel guarantees the defendant a zealous advocate to safeguard the defendant’s interests, give the defendant essential advice specific to his or her personal circumstances, and enables the defendant to make an intelligent choice between a plea and trial, People v. Peque, 22 NY3d 168, 190 (2013), cert denied 135 S. Ct. 90 (2014). In this present case, our client was deprived of that right and both the District Attorney and Court agreed.

Some attorneys are unaware of the immigration consequences an immigrant defendant may face when charged with specific crimes, especially recipients of DACA charged with alcohol related driving offenses. The Law Office of Ali Najmi routinely represents immigrant defendants, and understands how to successfully navigate immigrant defendants through the criminal justice system.

“Ali Najmi did excellent work reducing my case to a minimum, helping me avoid jail time as well as giving me the opportunity to have another chance to live a law abiding life. I had quite a heavy case and Ali succeeded in defending me.”

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