Opinion
2015–02485 Ind. No. 2051/14
02-06-2019
The PEOPLE, etc., Respondent, v. Abdelhak EL HOR, Appellant.
Paul Skip Laisure, New York, N.Y. (Jenin Younes of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and Johnnette Traill of counsel), for respondent.
Paul Skip Laisure, New York, N.Y. (Jenin Younes of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and Johnnette Traill of counsel), for respondent.
REINALDO E. RIVERA, J.P., JEFFREY A. COHEN, SYLVIA O. HINDS–RADIX, JOSEPH J. MALTESE, JJ.
DECISION & ORDERORDERED that the matter is remitted to the Supreme Court, Queens County, to afford the defendant an opportunity to move to vacate his plea of guilty in accordance herewith, and for a report on any such motion, and the appeal is held in abeyance in the interim. The Supreme Court, Queens County, shall file its report with all convenient speed.
The defendant contends that he was denied the right to due process of law because the Supreme Court never advised him of the possibility that he would be deported as a consequence of his plea of guilty.
In People v. Peque, 22 N.Y.3d 168, 980 N.Y.S.2d 280, 3 N.E.3d 617, the Court of Appeals held that, as a matter of "fundamental fairness," due process requires that a court apprise a noncitizen pleading guilty to a felony of the possibility of deportation as a consequence of the plea of guilty ( id. at 193, 980 N.Y.S.2d 280, 3 N.E.3d 617 ). A defendant seeking to vacate a plea based on this defect must demonstrate that there is a "reasonable probability" that he or she would not have pleaded guilty and would instead have gone to trial had the court warned of the possibility of deportation ( id. at 176, 980 N.Y.S.2d 280, 3 N.E.3d 617 ).
As the People correctly concede, the record does not demonstrate that the Supreme Court mentioned the possibility of deportation as a consequence of the defendant's plea of guilty. Under the circumstances of this case, we remit the matter to the Supreme Court, Queens County, to afford the defendant an opportunity to move to vacate his plea, and for a report by the Supreme Court thereafter. Any such motion shall be made by the defendant within 60 days after the date of this decision and order (see People v. Cole, 159 A.D.3d 829, 830, 69 N.Y.S.3d 829 ; People v. Lopez–Alvarado, 149 A.D.3d 981, 52 N.Y.S.3d 418 ) and, upon such motion, the defendant will have the burden of establishing that there is a "reasonable probability" that he would not have pleaded guilty had the court advised him of the possibility of deportation ( People v. Peque, 22 N.Y.3d at 176, 980 N.Y.S.2d 280, 3 N.E.3d 617 ; see People v. Cole, 159 A.D.3d at 830, 69 N.Y.S.3d 829 ; People v. Lopez–Alvarado, 149 A.D.3d 981, 982, 52 N.Y.S.3d 418 ; People v. Dennis, 140 A.D.3d 789, 790, 30 N.Y.S.3d 893 ; People v. Odle, 134 A.D.3d 1132, 1133, 21 N.Y.S.3d 727 ). In its report to this Court, the Supreme Court shall state whether the defendant has now moved to vacate his plea of guilty, and if so, shall set forth its finding as to whether the defendant made the requisite showing or failed to make the requisite showing to entitle him to vacatur of the plea (see People v. Lopez–Alvarado, 149 A.D.3d at 982, 52 N.Y.S.3d 418 ; People v. Odle, 134 A.D.3d at 1133, 21 N.Y.S.3d 727 ).
RIVERA, J.P., COHEN, HINDS–RADIX and MALTESE, JJ., concur.