| People v Medina |
| 2015 NY Slip Op 07374 [132 AD3d 1363] |
| October 9, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vJuan C. Medina, Appellant. |
Charles J. Greenberg, Amherst, for defendant-appellant.
Cindy F. Intschert, District Attorney, Watertown (Nicole L. Kyle of counsel), forrespondent.
Appeal from a judgment of the Jefferson County Court (Kim H. Martusewicz, J.),rendered March 15, 2010. The judgment convicted defendant, upon his plea of guilty, ofattempted promoting prison contraband in the first degree.
It is hereby ordered that the case is held, the decision is reserved and the matter isremitted to Jefferson County Court for further proceedings in accordance with thefollowing memorandum: Defendant appeals from a judgment convicting him, upon hisplea of guilty, of attempted promoting prison contraband in the first degree (Penal Law§§ 110.00, 205.25 [2]). The record of the plea proceeding establishesthat County Court failed to apprise defendant, a noncitizen, that deportation was apotential consequence of his guilty plea. As defendant contends and the People correctlyconcede, the case should be remitted to afford defendant "the opportunity to move tovacate his plea upon a showing that there is a 'reasonable probability' that he would nothave pleaded guilty had the court advised him of the possibility of deportation" (People v Fermin, 123 AD3d465, 466 [2014], quoting People v Peque, 22 NY3d 168, 198 [2013]). We thereforehold the case, reserve decision, and remit the matter to County Court for that purpose.Defendant further contends that counsel was ineffective in failing to inform him thatdeportation was a potential consequence of the plea (see Padilla v Kentucky, 559US 356 [2010]). Inasmuch as that contention is based upon matters outside the record, itmust be raised in a motion pursuant to CPL 440.10 (see People v Drammeh, 100 AD3d 650, 651 [2012], lvdenied 20 NY3d 1098 [2013]). Present—Scudder, P.J., Smith, Lindley,Valentino and Whalen, JJ.