Opinion
01-27-2016
The PEOPLE, etc., respondent, v. Harry JEAN–JOSEPH, appellant.
Lynn W.L. Fahey, New York, N.Y. (Barry Stendig of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Joyce Slevin of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (Barry Stendig of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Joyce Slevin of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Walsh, J.), rendered November 13, 2012, convicting him of criminal possession of a weapon in the third degree, upon his plea of guilty, and imposing sentence.
Motion by the People to dismiss the appeal on the ground that the defendant has been deported and is no longer available to obey the mandate of the Court. By decision and order on motion of this Court dated July 9, 2015, the motion was held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the submission of the appeal, it is
ORDERED that the motion is denied; and it is further,
ORDERED that the matter is remitted to the Supreme Court, Kings County, to afford the defendant an opportunity to move to vacate his plea in accordance herewith, and for a report thereafter on any such motion by the defendant, and the appeal is held in abeyance in the interim. The Supreme Court, Kings County, shall file its report with all convenient speed.
Under the circumstances of this case, we deny the People's motion to dismiss the instant appeal (see People v. Ventura, 17 N.Y.3d 675, 678, 934 N.Y.S.2d 756, 958 N.E.2d 884 ; People v. Jones, 104 A.D.3d 957, 960 N.Y.S.2d 910 ; cf. People v. Harrison, 115 A.D.3d 980, 982 N.Y.S.2d 544, lv. granted 24 N.Y.3d 1084, 1 N.Y.S.3d 11, 25 N.E.3d 348 ; People v. Serrano, 45 Misc.3d 69, 997 N.Y.S.2d 213 [App.Term, 2d Dept., 2d, 11th & 13th Jud.Dists.], lv. granted 25 N.Y.3d 953, 7 N.Y.S.3d 282, 30 N.E.3d 173 ).
Inasmuch as the plea record demonstrates that the Supreme Court failed to advise the defendant of the possibility that he would be deported as a consequence of his plea, we remit the matter to the Supreme Court, Kings County, to afford the defendant an opportunity to move to vacate his plea upon a showing 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 168, 176, 198, 980 N.Y.S.2d 280, 3 N.E.3d 617 ; see People v. Al–Muwallad, 121 A.D.3d 1123, 1124, 995 N.Y.S.2d 200 ; People v. Charles, 117 A.D.3d 1073, 1074, 986 N.Y.S.2d 228 ).
RIVERA, J.P., DILLON, ROMAN and DUFFY, JJ., concur.