| People v Odle |
| 2015 NY Slip Op 09699 [134 AD3d 1132] |
| December 30, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Corey Odle, Appellant. |
Lynn W. L. Fahey, New York, NY (Leila Hull of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano,Johnnette Traill, and Nancy Fitzpatrick Talcott of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Aloise, J.), rendered April 24, 2013, convicting him of criminal sale of a firearm in thethird degree, upon his plea of guilty, and imposing sentence.
Ordered that the matter is remitted to the Supreme Court, Queens County, to affordthe defendant an opportunity to move to vacate his plea in accordance herewith, and for areport on any such motion, and the appeal is held in abeyance in the interim. TheSupreme Court, Queens County, shall file its report with all convenient speed.
Relying upon People vPeque (22 NY3d 168 [2013]) the defendant contends that his plea of guilty wasnot knowing and voluntary because the plea record demonstrates that the court neveradvised him of the possibility that he would be deported as a consequence of his plea. InPeque, the Court of Appeals held that, as a matter of "fundamental fairness," dueprocess requires that a court apprise a noncitizen pleading guilty to a felony of thepossibility of deportation as a consequence of the plea of guilty (id. at 193). Adefendant seeking to vacate a plea based on this 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).
As a threshold matter, we disagree with the People's contention that Pequeshould only apply prospectively. Inasmuch as Peque, decided after thedefendant's plea, involved federal constitutional principles, it must be applied to thisdirect appeal (see People vLlibre, 125 AD3d 422, 424 [2015]; People v Manon, 123 AD3d 467 [2014]; People v Brazil, 123 AD3d466 [2014]; cf. People v Martello, 93 NY2d 645, 650 [1999]; People v Pena, 132 AD3d910 [2015]). Contrary to the People's contention, the record does not demonstrateeither that the Supreme Court mentioned, or that the defendant was otherwise aware of,the possibility of deportation. Therefore, the defendant's claim is not subject to therequirement of preservation (see People v Peque, 22 NY3d at 182-183; People v Louree, 8 NY3d541, 546 [2007]; People vCharles, 117 AD3d 1073, 1074 [2014]).
Under the circumstances of this case, we deem it appropriate to remit the matter tothe Supreme Court, Queens County, to afford the defendant an opportunity to move tovacate his [*2]plea, and for a report by the SupremeCourt thereafter. Any such motion shall be made by the defendant within 60 days afterthe date of this decision and order, and upon such motion, the defendant will have theburden of establishing at a hearing that there is a "reasonable probability" that he wouldnot have pleaded guilty had the court advised him of the possibility of deportation(People v Peque, 22 NY3d at 176; see People v Charles, 117 AD3d at1073). In its report to this Court, the Supreme Court shall state whether the defendantmade a motion to withdraw his plea, and if so, shall set forth its finding as to whether thedefendant made the requisite showing or failed to make the requisite showing. Leventhal,J.P., Chambers, Sgroi and Cohen, JJ., concur.