Opinion
602 KA 16–01230
04-27-2018
The PEOPLE of the State of New York, Respondent, v. Johanna ROMAN, Defendant–Appellant.
EASTON THOMPSON KASPEREK SHIFFRIN LLP, ROCHESTER (BRIAN SHIFFRIN OF COUNSEL), FOR DEFENDANT–APPELLANT. SCOTT D. McNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF COUNSEL), FOR RESPONDENT.
EASTON THOMPSON KASPEREK SHIFFRIN LLP, ROCHESTER (BRIAN SHIFFRIN OF COUNSEL), FOR DEFENDANT–APPELLANT.
SCOTT D. McNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., CARNI, LINDLEY, AND CURRAN, JJ.
MEMORANDUM AND ORDER
Memorandum:
On appeal from a judgment convicting her upon a plea of guilty of assault in the second degree ( Penal Law § 120.05[2] ), defendant, a noncitizen, contends that her felony guilty plea was not knowingly, voluntarily, and intelligently entered because County Court failed to advise her 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 ––– US ––––, 135 S.Ct. 90, 190 L.Ed.2d 75 (2014) ). As a preliminary matter, we note that defendant's challenge to the voluntariness of her plea survives her waiver of the right to appeal (see People v. Burtes, 151 A.D.3d 1806, 1807, 58 N.Y.S.3d 766 [4th Dept. 2017], lv denied 30 N.Y.3d 978, 67 N.Y.S.3d 580, 89 N.E.3d 1260 [2017] ). Furthermore, contrary to the People's contention, preservation was not required inasmuch as the record bears no indication that defendant knew about the possibility of deportation (see Peque, 22 N.Y.3d at 183, 980 N.Y.S.2d 280, 3 N.E.3d 617 ; cf. People v. Chelley, 120 A.D.3d 987, 988, 990 N.Y.S.2d 431 [4th Dept. 2014] ). With respect to defendant's substantive contention, the People correctly concede that the court did not properly advise defendant of the deportation consequences of her plea. We therefore hold the case, reserve decision and remit the matter to County Court to afford defendant an opportunity to move to vacate her plea based upon a showing that "there is a ‘reasonable probability’ that she would not have pleaded guilty had she known that she faced the risk of being deported as a result of the plea" ( People v. Puskar, 149 A.D.3d 1548, 1548, 51 N.Y.S.3d 452 [4th Dept. 2017], quoting Peque, 22 N.Y.3d at 176, 980 N.Y.S.2d 280, 3 N.E.3d 617 ).
It is hereby ORDERED that the case is held, the decision is reserved and the matter is remitted to Oneida County Court for further proceedings