Opinion
520 KA 18-00658
08-20-2020
The PEOPLE of the State of New York, Respondent, v. Mohamed JUMALE, Defendant-Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ERIN A. KULESUS OF COUNSEL), FOR DEFENDANT-APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ERIN A. KULESUS OF COUNSEL), FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, NEMOYER, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the case is held, the decision is reserved and the matter is remitted to Supreme Court, Erie County, for further proceedings in accordance with the following memorandum: On appeal from a judgment convicting him upon his plea of guilty of attempted burglary in the second degree ( Penal Law §§ 110.00, 140.25 [2] ), defendant, a noncitizen, contends that his felony guilty plea was not knowingly, voluntarily, and intelligently entered because Supreme Court failed to advise him of the potential deportation consequences of such a plea, as required by People v. Peque, 22 N.Y.3d 168, 980 N.Y.S.2d 280, 3 N.E.3d 617 [2013], cert denied 574 U.S. 840, 135 S.Ct. 90, 190 L.Ed.2d 75 [2014]. As a preliminary matter, we note that defendant's challenge to the voluntariness of his plea would survive even a valid waiver of the right to appeal (see People v. Roman , 160 A.D.3d 1492, 1492, 72 N.Y.S.3d 899 [4th Dept. 2018] ). Even assuming, arguendo, that defendant was required to preserve his contention under the circumstances of this case (see People v. Delorbe , 35 N.Y.3d 112, 118-119, 125 N.Y.S.3d 327, 149 N.E.3d 20 [2020] ), we exercise our power to address it as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c] ). "[D]ue process compels a trial court to apprise a defendant that, if the defendant is not an American citizen, he or she may be deported as a consequence of a guilty plea to a felony" ( Peque , 22 N.Y.3d at 176, 980 N.Y.S.2d 280, 3 N.E.3d 617 ). Here, the record of the plea proceeding establishes that the court failed to fulfill that obligation (see id. at 200, 980 N.Y.S.2d 280, 3 N.E.3d 617 ; People v. Medina , 132 A.D.3d 1363, 1363, 17 N.Y.S.3d 258 [4th Dept. 2015] ). As defendant contends and contrary to the People's suggestion, "the case should be remitted to afford defendant the 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" ( Medina , 132 A.D.3d at 1363, 17 N.Y.S.3d 258 [internal quotation marks omitted]; see Peque , 22 N.Y.3d at 200-201, 980 N.Y.S.2d 280, 3 N.E.3d 617 ). We therefore hold the case, reserve decision, and remit the matter to Supreme Court for that purpose.
Defendant further contends that he was denied effective assistance of counsel because defense counsel misadvised him about the potential deportation consequences of the plea (see Padilla v. Kentucky , 559 U.S. 356, 374, 130 S.Ct. 1473, 176 L.Ed.2d 284 [2010] ). We conclude that defendant's contention "is based, in part, on matter appearing on the record and, in part, on matter outside the record and, thus, constitutes a ‘mixed claim of ineffective assistance’ " ( People v. Alvarracin , 148 A.D.3d 1041, 1042, 50 N.Y.S.3d 146 [2d Dept. 2017], lv denied 29 N.Y.3d 1075, 64 N.Y.S.3d 165, 86 N.E.3d 252 [2017] ). Where, as here, "the ‘claim of ineffective assistance of counsel cannot be resolved without reference to matter outside of the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety’ " ( People v. Wilson [Appeal No. 2], 162 A.D.3d 1591, 1592, 78 N.Y.S.3d 819 [4th Dept. 2018] [emphasis omitted]; see Medina , 132 A.D.3d at 1364, 17 N.Y.S.3d 258 ; see generally People v. Maffei, 35 N.Y.3d 264, ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2020 N.Y. Slip Op. 02680, *3 [2020] ).