Opinion
Nos. 2020-09400 2020-09401 Ind. Nos. 6930/18 7723/18
11-17-2021
The People, etc., respondent, v. Jeriah Bamugo, appellant.
Patricia Pazner, New York, NY (Mark W. Vorkink of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Solomon Neubort, and Kamephis Perez of counsel), for respondent.
Argued - October 19, 2021
D67689 T/htr
Patricia Pazner, New York, NY (Mark W. Vorkink of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Solomon Neubort, and Kamephis Perez of counsel), for respondent.
LEONARD B. AUSTIN, J.P. COLLEEN D. DUFFY BETSY BARROS PAUL WOOTEN, JJ.
DECISION & ORDER
Appeal by the defendant from two judgments of the Supreme Court, Kings County (Dineen Ann Riviezzo, J.), both rendered February 6, 2020, convicting him of assault in the second degree under Indictment No. 6930/18, and sexual abuse in the first degree under Indictment No. 7723/18, upon his pleas of guilty, and imposing sentences.
ORDERED that the matters are remitted to the Supreme Court, Kings County, to afford the defendant an opportunity to move to vacate his pleas of guilty in accordance herewith, and for a report to this Court thereafter limited to the Supreme Court's findings with respect to whether the defendant has moved to vacate his pleas of guilty and, if so, whether he has established an entitlement to the withdrawal of his pleas, and the appeal is held in abeyance in the interim. The Supreme Court, Kings County, shall file its report with all convenient speed.
The defendant pleaded guilty to assault in the second degree and sexual abuse in the first degree. On appeal, the defendant contends that his pleas of guilty were not knowing, voluntary, and intelligent because he is not a United States citizen and the Supreme Court never advised him of the possibility that he could be deported as a consequence of his pleas of guilty.
Contrary to the People's contention, the defendant's contention that his due process rights were violated due to the Supreme Court's failure to warn him that his pleas could subject him to deportation is excepted from the requirement of preservation because the record does not demonstrate that the defendant was aware that he could be deported as a consequence of his pleas of guilty (see People v Peque, 22 N.Y.3d 168, 182-183; People v Ulanov, 188 A.D.3d 1271, 1272). Indeed, here, the record shows that the court failed to address the possibility of deportation as a consequence of the defendant's pleas of guilty (see People v Peque, 22 N.Y.3d at 183; People v Ulanov, 188 A.D.3d at 1272). Inasmuch as there is no indication in the record that the defendant was aware that he could be deported as a result of his pleas (see People v Ulanov, 188 A.D.3d at 1272; People v Mohamed, 171 A.D.3d 796, 797), the defendant had no "practical ability" to object to the court's comment about immigration consequences or to otherwise tell the court, if he chose, that he would not have pleaded guilty if he had known about the possibility of deportation (People v Peque, 22 N.Y.3d at 182; see People v Mohamed, 171 A.D.3d at 797).
Accordingly, we remit the matters to the Supreme Court, Kings County, to afford the defendant an opportunity to move to vacate his pleas of guilty and for a report by the Supreme Court thereafter (see People v Kostyk, 170 A.D.3d 1042, 1042; People v Cole, 159 A.D.3d 829, 829-830). Any such motion shall be made by the defendant within 60 days after the date of this decision and order (see People v Kostyk, 170 A.D.3d at 1043; People v Cole, 159 A.D.3d at 829-830). 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 warned him of the possibility of deportation (People v Peque, 22 N.Y.3d at 176). In its report to this Court, the Supreme Court shall set forth whether the defendant moved to vacate his pleas of guilty, and, if so, set forth its finding as to whether the defendant made the requisite showing or failed to make the requisite showing (see People v Peque, 22 N.Y.3d at 200-201; People v Ulanov, 188 A.D.3d at 1273).
In light of our determination, we do not address the defendant's remaining contention at this time.
AUSTIN, J.P., DUFFY, BARROS and WOOTEN, JJ., concur.