| People v Montiel-Islas |
| 2018 NY Slip Op 02204 [159 AD3d 1039] |
| March 28, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Guillermo Montiel-Islas, Appellant. |
Paul Skip Laisure, New York, NY (Tammy Linn of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, Merri Turk Lasky, and Timothy McGrath of counsel; Max Lubin on the brief), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (PaulineMullings, J.), rendered October 1, 2013, convicting him of aggravated driving while intoxicated,upon his plea of guilty, and imposing sentence.
Ordered that the matter is remitted to the Supreme Court, Queens 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 SupremeCourt, Queens County, shall file its report with all convenient speed.
In People v Peque (22 NY3d168 [2013]), the Court of Appeals held that, as part of a trial court's independent obligationto ascertain whether a defendant is pleading guilty voluntarily, the court must alert a noncitizendefendant, through a "short, straightforward statement on the record," that, if the defendant is nota United States citizen, "he or she may be deported upon a guilty plea" (id. at 197). Here,the Supreme Court's vague reference to "immigration ramifications" was not adequate underPeque (see id. at 183).
In order to withdraw or obtain vacatur of a plea based upon a Peque error, "adefendant must show that there is a reasonable probability that he or she would not have pleadedguilty and would have gone to trial had the trial court informed the defendant of potentialdeportation" (id. at 198; seePeople v Lopez-Alvarado, 149 AD3d 981, 981-982 [2017]). That issue is notdeterminable on this record. Accordingly, we remit the matter to the Supreme Court, QueensCounty, to afford the defendant an opportunity to move to vacate his plea, and for a report by theSupreme Court 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 shall have the burden ofestablishing that there is a "reasonable probability" that he would not have pleaded guilty had thecourt advised him of the possibility of deportation (People v Peque, 22 NY3d at 176;see People v Lopez-Alvarado, 149 AD3d at 981-982). In its report to this Court, theSupreme Court shall state whether the defendant moved to vacate his plea of guilty, and if so,shall include its findings as to whether the defendant has made the requisite showing to entitlehim to vacatur of the plea (see People v Peque, 22 NY3d at 200-201; People vLopez-Alvarado, 149 AD3d at 982). Balkin, J.P., Leventhal, Hinds-Radix and Maltese, JJ.,concur.