| People v Charles |
| 2014 NY Slip Op 03854 [117 AD3d 1073] |
| May 28, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Darrien Charles, Also Known as Darryl Carrington,Appellant. |
Arza Feldman, Uniondale, N.Y. (Steven A. Feldman of counsel), for appellant.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Anne E. Oh of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County(Hudson, J.), rendered March 24, 2010, convicting him of attempted criminal possessionof a forged instrument in the first degree, upon his plea of guilty, and imposingsentence.
Ordered that the matter is remitted to the County Court, Suffolk County, for furtherproceedings in accordance herewith, and the appeal is held in abeyance in theinterim.
The defendant contends that his plea of guilty was not knowing and voluntarybecause the plea record demonstrates that the court never advised him of the possibilitythat he would be deported as a consequence of his plea.
In People v Peque (22NY3d 168 [2013]), the Court of Appeals recognized that deportation, although a"collateral" consequence of a plea of guilty, is a "truly unique" collateral consequence:"there is nothing else quite like it" (People v Peque, 22 NY3d at 196). Thus, theCourt held that as a matter of "fundamental fairness," due process requires that a courtapprise a noncitizen pleading guilty to a felony of the possibility of deportation as aconsequence of the plea of guilty (id. at 176, 193, 197). The absence of thatadvisement does not, in itself, render a plea of guilty not knowing and voluntary. Instead,a defendant seeking to vacate a plea based on the defect must establish that there is a"reasonable probability" that he or she would not have pleaded guilty and would insteadhave gone to trial had the court warned of the possibility of deportation (id. at176, 198). The defendant should be given an opportunity on remittal to make a motion tovacate the plea. On that motion, the defendant may seek to establish the existence of therequisite "reasonable probability" that he or she would not have pleaded guilty had thecourt mentioned deportation consequences (id. at 198 n 11).
Here, inasmuch as the record does not demonstrate either that the County Courtmentioned, or that the defendant was otherwise aware of, the possibility of deportation,the defendant's claim is not subject to the requirement of preservation (see id. at182-183; People v Louree,8 NY3d 541, 546 [2007]). Moreover, in light of the court's failure, we remit thematter to the County Court to afford the defendant an opportunity to move to vacate hisplea upon a showing that there is a "reasonable probability" that he would not havepleaded guilty had the court advised him of the possibility of deportation. If thedefendant makes the requisite showing, the plea should be vacated (see People vPeque, 22 NY3d at 200-201).
We do not address the defendant's remaining contention. Skelos, J.P., Balkin,Leventhal and Sgroi, JJ., concur.