Criminal – Ineffective assistance – Deportation

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Where a defendant in 2010 admitted to sufficient facts to warrant a guilty finding on a charge of assault and battery on a child with injury under G.L.c. 265, section13J(b), his motion for a new trial should be allowed based on defense counsel’s failure to warn the defendant of the immigration consequences of the admission.

“… The immigration consequence of a charge involving domestic violence, stalking, or child abuse is mandatory deportation. This consequence is clear, easily discernible, and should have been communicated to [defendant Yohan Batista-Perez]. By not doing so, counsel’s representation fell below that of a reasonable fallible attorney. …

“Under the totality of the circumstances, there is a reasonable probability that a reasonable person in the defendant’s circumstance would have gone to trial or tried to plead to a different charge if given constitutionally effective advice. …”

Commonwealth v. Batista-Perez (Lawyers Weekly No. 16-006-19) (3 pages) (Abany, J.) (Haverhill District Court) (Docket No. 1038CR000498) (June 5, 2019).

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