| People v Mohamed |
| 2019 NY Slip Op 02557 [171 AD3d 796] |
| April 3, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Naseer Mohamed, Appellant. |
Paul Skip Laisure, New York, NY (Ronald Zapata of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, and Danielle S. Fenn of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (BarryKron, J.), rendered August 13, 2013, convicting him of criminal sale of a controlled substance inthe third degree, 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 by the defendant, and the appeal is held in abeyance in the interim.The Supreme Court, Queens County, shall file its report with all convenient speed.
In People v Peque (22 NY3d168 [2013]), 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 the possibility ofdeportation as a consequence of the plea of guilty (id. at 193). "Mindful of the burden thisrule imposes on busy and calendar-conscious trial courts, they are to be afforded considerablelatitude in stating the requisite advice" (id. at 197). A defendant seeking to vacate a pleabased on this defect must demonstrate that there is a "reasonable probability" that he or shewould not have pleaded guilty and would instead have gone to trial had the court warned of thepossibility of deportation (id. at 176).
In this case, the defendant contends, inter alia, that his plea of guilty was not knowing,voluntary, and intelligent because the record demonstrates that the Supreme Court never advisedhim of the possibility that he would be deported as a consequence of his plea. The People argue,among other things, that this contention is unpreserved for appellate review.
"When a defendant pleads guilty to a crime, he or she generally must move to withdraw theplea or otherwise object to its entry prior to the imposition of sentence to preserve a challenge tothe validity of the plea for appellate review" (People v Williams, 27 NY3d 212, 214 [2016]). Accordingly, asrelevant here, a defendant is generally required to preserve a contention that a court failed toadvise him or her of the possibility of deportation as a consequence of pleading guilty (see People v Pastor, 28 NY3d1089, 1090 [2016]). However, a narrow exception to the preservation requirement exists "inrare cases where the defendant lacks a reasonable opportunity to object to a fundamental defect inthe plea which is clear on the face of the record and to which 'the court's attention should havebeen instantly drawn,' such that 'the salutary purpose of the preservation rule is . . .not jeopardized' " (People v Williams, 27 NY3d at 214, quoting People vLopez, 71 NY2d 662, 666 [1988]; see People v Peque, 22 NY3d at 182).
In this case, the exception applies. At the plea proceeding, the court merely asked defensecounsel if he had discussed with the defendant the potential "immigration consequences" ofpleading guilty. Defense counsel responded: "He is here on a Green Card. We have discussed theimmigration consequences." Furthermore, the People's contention that the written appeal waiverform demonstrates that the defendant was aware of the possibility of deportation prior to theimposition of the sentence is without merit (cf. People v Stewart, 142 AD3d 629, 629 [2016]). Inasmuch as therecord does not demonstrate either that the Supreme Court mentioned, or that the defendant wasotherwise aware of, the possibility of deportation, the defendant had "no practical ability"to object to the court's statement or to otherwise tell the court, if he chose, that he would not havepleaded guilty if he had known about the possibility of deportation (People v Peque, 22NY3d at 182; see People vAl-Muwallad, 121 AD3d 1123, 1124 [2014]; accord People v Montiel-Islas, 159 AD3d 1039, 1040 [2018];cf. People v Stewart, 142 AD3d at 629; People v Rodriguez, 115 AD3d 884, 884 [2014]).
Accordingly, we remit the matter to the Supreme Court, Queens County, to afford thedefendant an opportunity to move to vacate his plea. On that motion, the defendant may seek toestablish 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 Charles, 117 AD3d1073 [2014]). If the defendant makes the requisite showing, the plea should be vacated(see People v Peque, 22 NY3d at 200-201; People v Charles, 117 AD3d at 1074),and the Supreme Court should include that determination in its report. If the defendant fails tomake the requisite showing, the court should deny the motion and include that determination inits report. Dillon, J.P., Chambers, Miller and Duffy, JJ., concur.