| People v Lopez-Alvarado |
| 2017 NY Slip Op 03018 [149 AD3d 981] |
| April 19, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Reynaldo Lopez-Alvarado, Appellant. |
Christopher J. Cassar, P.C., Huntington, NY, for appellant.
Thomas J. Spota, District Attorney, Riverhead, NY (Grazia DiVincenzo of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Toomey, J.),rendered October 25, 2013, convicting him of attempted assault in the second degree, upon hisplea of guilty, and imposing sentence.
Ordered that the matter is remitted to the County Court, Suffolk County, to afford thedefendant an opportunity to move to vacate his plea in accordance herewith, and for a reportthereafter on any such motion, and the appeal is held in abeyance in the interim. The CountyCourt, Suffolk County, shall file its report with all convenient speed.
The defendant contends that his plea of guilty was not knowing, voluntary, and intelligentbecause the record demonstrates that the County Court did not sufficiently advise him that hemay be deported as a consequence of his plea.
In People v Peque (22 NY3d168 [2013]), the Court of Appeals held that, as part of its independent obligation to ascertainwhether a defendant is pleading guilty voluntarily, a trial court must alert a noncitizen defendantthat he or she may be deported as a consequence of the plea of guilty (see id. at 193).Although no particular litany is required, "[t]he trial court must provide a short, straightforwardstatement on the record notifying the defendant that, in sum and substance, if the defendant is nota United States citizen, he or she may be deported upon a guilty plea" (id. at 197).
Here, we agree with the defendant that the County Court did not provide him with such astatement on the record. However, contrary to the defendant's contention, he is not entitled toreversal of the judgment of conviction at this juncture. In order to withdraw or obtain vacatur of aplea based upon a Peque error, "a defendant must show that there is a reasonableprobability that he or she would not have pleaded guilty and would have gone to trial had the trialcourt informed the defendant of potential deportation" (id. at 198). Accordingly, we remitthe matter to the County Court, Suffolk County, to afford the defendant an opportunity to moveto vacate his plea, and for a report by the County Court thereafter. Any such motion shall bemade by the defendant within 60 [*2]days after the date of thisdecision and order, and upon such motion, the defendant shall have the burden of establishingthat there is a "reasonable probability" that he would not have pleaded guilty had the courtadvised him of the possibility of deportation (id. at 176; see People v Dennis, 140 AD3d789, 790 [2016]; People vOdle, 134 AD3d 1132, 1133 [2015]; People v Al-Muwallad, 121 AD3d 1123, 1124 [2014]). In its reportto this Court, the County Court shall state whether the defendant moved to vacate his plea ofguilty, and if so, shall include its findings as to whether the defendant has made the requisiteshowing to entitle him to vacatur of the plea (see People v Peque, 22 NY3d at 200-201;People v Al-Muwallad, 121 AD3d at 1124; People v Charles, 117 AD3d 1073, 1074 [2014]). Balkin, J.P.,Chambers, Miller and Brathwaite Nelson, JJ., concur.
Motion by the respondent to strike the appellant's brief and, in effect, portions of the recordfiled by the appellant on an appeal from a judgment of the County Court, Suffolk County,rendered October 25, 2013, on the ground that they contain or refer to matter dehors the record.By decision and order on motion of this Court dated June 10, 2016, the motion was held inabeyance and referred to the panel of Justices hearing the appeal for determination upon theargument or submission of the appeal.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, andupon the submission of the appeal, it is
Ordered that the respondent's motion is granted to the extent that pages 1 through 52 andpages 75 through 90 of the record filed by the appellant are stricken, those portions of theappellant's brief which refer to that material are stricken, and those pages of the record and thoseportions of the brief have not been considered; and it is further,
Ordered that the respondent's motion is otherwise denied.