| People v Ghingoree |
| 2017 NY Slip Op 03770 [150 AD3d 881] |
| May 10, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Eddie V. Ghingoree, Appellant. |
Laurette D. Mulry, Riverhead, NY (Alfred J. Cicale of counsel), 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 November 7, 2014, convicting him of criminal possession of a controlled substance inthe seventh degree, upon his plea of guilty, and imposing sentence. The appeal brings up forreview the summary denial of the defendant's motion to withdraw his plea of guilty.
Ordered that the matter is remitted to the County Court, Suffolk County, for furtherproceedings on the defendant's motion to withdraw his plea of guilty in accordance herewith, andthereafter a report to this Court limited to the County Court's findings with respect to the motionand whether the defendant has established his entitlement to the withdrawal of his plea, and theappeal is held in abeyance pending receipt of the County Court's report, which shall be filed withall convenient speed.
Only when a motion to withdraw a plea is "patently insufficient on its face" should a courtdeny the motion without making any inquiry (People v Mitchell, 21 NY3d 964, 967 [2013]). Here, thedefendant's motion was not patently insufficient on its face. The defendant allegedly wasmisinformed by his former counsel about the risk of deportation arising from a pendingimmigration case relating to a prior offense, as well as the separate risk of deportation resultingfrom the subject plea in light of the status of the pending immigration case. The defendant'sallegations are not belied by the plea minutes or by former counsel's subsequent explanations tothe County Court in support of his motion to be relieved as counsel. Under the circumstances, thecourt should have afforded the defendant a reasonable opportunity to present his contentions toenable the court to make an informed determination (see People v Tinsley, 35 NY2d 926,927 [1974]).
Accordingly, we hold the appeal in abeyance and remit the matter to the County Court,Suffolk County, for further proceedings in accordance with People v Tinsley (35 NY2d926 [1974]), followed by a report to this Court setting forth the County Court's findings withrespect to the motion and whether the defendant has established his entitlement to the withdrawalof his plea. Chambers, J.P., Hall, Maltese and Brathwaite Nelson, JJ., concur.