| People v Dennis |
| 2016 NY Slip Op 04235 [140 AD3d 789] |
| June 1, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Josone Dennis, Appellant. |
Kent V. Moston, Hempstead, NY (Jeremy L. Goldberg of counsel), forappellant.
Madeline Singas, District Attorney, Mineola, NY (Daniel Bresnahan and PamelaKelly-Pincus of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County(Spergel, J.), rendered May 9, 2014, convicting him of attempted robbery in the seconddegree, upon his plea of guilty, and imposing sentence.
Ordered that the matter is remitted to the Supreme Court, Nassau 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, Nassau County, shall file its report with all convenient speed.
The defendant contends that his plea of guilty was not knowing, voluntary, andintelligent because the record demonstrates that the Supreme Court never advised him ofthe possibility that he would be deported as a consequence of his plea.
In People v Peque (22NY3d 168 [2013]), the Court of Appeals held that, as a matter of "fundamentalfairness," due process requires that a court apprise a noncitizen pleading guilty to afelony of the possibility of deportation as a consequence of the guilty plea (id. at193). A defendant seeking to vacate a plea based on this defect must demonstrate thatthere is a "reasonable probability" that he or she would not have pleaded guilty andwould instead have gone to trial had the court warned of the possibility of deportation(id. at 176).
Here, as the People correctly concede, the record does not demonstrate that theSupreme Court mentioned the possibility of deportation as a consequence of thedefendant's plea. Under the circumstances of this case, we remit the matter to theSupreme Court, Nassau County, to afford the defendant an opportunity to move to vacatehis plea, and for a report by the Supreme Court thereafter. Any such motion shall bemade by the defendant within 60 days after the date of this decision and order (see People v Odle, 134 AD3d1132, 1133 [2015]), and upon such motion, the defendant will have the burden ofestablishing at a hearing that there is a "reasonable probability" that he would not havepleaded guilty had the court advised him of the possibility of deportation (People vPeque, 22 NY3d at 176; see People v Odle, 134 AD3d at 1133; People v Al-Muwallad, 121AD3d 1123, 1124 [2014]; People v Charles, 117 AD3d 1073, 1073-1074 [2014]). Inits report to this Court, the Supreme Court shall state whether the defendant moved tovacate his guilty plea, and if so, shall set forth its finding [*2]as to whether the defendant made the requisite showing orfailed to make the requisite showing (see People v Odle, 134 AD3d at 1133).Rivera, J.P., Austin, Roman and Cohen, JJ., concur.