Opinion
2012-1665 RO CR
12-31-2015
The People of the State of New York, Respondent, v. Georges Martial, Appellant.
PRESENT: :
Appeal from a judgment of the Justice Court of the Village of Spring Valley, Rockland County (David Fried, J.), rendered March 2, 2011. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a controlled substance in the seventh degree.
ORDERED that the matter is remitted to the Justice Court to afford defendant an opportunity to move, within 90 days of this decision and order, to vacate his plea in accordance herewith, and for a report thereafter on any such motion by defendant, and the appeal is held in abeyance pending receipt of the Justice Court's report. The Justice Court shall file its report with all convenient speed.
On November 3, 2010, defendant accepted an offer to plead guilty to a single misdemeanor charge of criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03), in satisfaction of all of the charges defendant faced as a result of arrests in February and March 2010, in exchange for a sentence of a conditional discharge and 50 hours of community service. At the plea proceeding, defendant, among other things, admitted that, on March 1, 2010, in the Village of Spring Valley, he had possessed a controlled substance, that being cocaine. However, the Justice Court made no mention of any immigration or deportation consequences as a result of defendant entering a guilty plea. It is undisputed that on or about May 27, 2011, the United States Department of Homeland Security commenced a removal proceeding against defendant, pursuant to sections 237 (a) (2) and 240 of the Federal Immigration and Nationality Act, based on this conviction.
On appeal, defendant contends that the Justice Court's failure to inform him of the immigration consequences of his plea requires reversal and remittal to the Justice Court pursuant to Padilla v Kentucky (559 US 356 [2010]) and People v Peque (22 NY3d 168 [2013]), and that his counsel at the plea was ineffective because he failed to inform defendant that entering into the plea could subject him to deportation.
Defendant's claim that he was denied the effective assistance of counsel on the ground that his counsel failed to advise him of the immigration/deportation consequences of his plea does not appear on the face of the record, and thus cannot be reviewed on direct appeal (see People v Peque, 22 NY3d at 202-203; People v Balbuena, 123 AD3d 1384, 1386 [2014]).
In People v Peque (22 NY3d at 176), the Court of Appeals determined, in accordance with the decision of the United States Supreme Court in Padilla v Kentucky (559 US 356), "that deportation is a plea consequence of such tremendous importance, grave impact and frequent occurrence that a defendant is entitled to notice that it may ensue from a plea." Thus, "to protect the rights of the large number of noncitizen defendants pleading guilty to felonies in New York, trial courts must now make all defendants aware that, if they are not United States citizens, their felony guilty pleas may expose them to deportation" ( People v Peque, 22 NY3d at 197). However, "the trial court's failure to provide such advice does not entitle the defendant to automatic withdrawal or vacatur of the plea" ( id. at 176). Instead, "[t]he failure to apprise a defendant of deportation as a consequence of a guilty plea only affects the voluntariness of the plea where that consequence was of such great importance to him that he would have made a different decision had that consequence been disclosed. Therefore, in order to withdraw or obtain vacatur of a plea, a defendant must show that there is a reasonable probability that he or she would not have pleaded guilty and would have gone to trial had the trial court informed the defendant of potential deportation. In determining whether the defendant has shown such prejudice, the court should consider, among other things, the favorability of the plea, the potential consequences the defendant might face upon a conviction after trial, the strength of the People's case against the defendant, the defendant's ties to the United States and the defendant's receipt of any advice from counsel regarding potential deportation. This assessment should be made in a commonsense manner, with due regard for the significance that potential deportation holds for many noncitizen defendants. To aid in this undertaking, where possible, the defendant should make every effort to develop an adequate record of the circumstances surrounding the plea at sentencing, which will permit the trial court to efficiently determine the plea's validity and enable appellate review of the defendant's claim of prejudice" ( People v Peque, 22 NY3d at 198-199 [internal quotation marks, citations and footnotes omitted]).
The Court indicated that the remedy for such an alleged violation of due process would be for the appellate court to remit the matter to the lower court to afford the defendant the opportunity to move to vacate the plea "and develop a record relevant to the issue of prejudice . . . where the deficiency in the plea allocution appears on the face of the record . . . . Upon a facially sufficient plea vacatur motion, the court should hold a hearing to provide the defendant with an opportunity to demonstrate prejudice." If the defendant can demonstrate prejudice by the defect in the plea allocution upon remittal to the lower court, that court must vacate his plea. "In the absence of a showing of prejudice, the court should amend the judgment of conviction to reflect its ruling on defendant's plea vacatur motion and otherwise leave the judgment undisturbed" (People v Peque, 22 NY3d at 200-201 [footnote omitted]; see People v Llibre, 125 AD3d 422, 423 [2015] ["the remedy for a Peque error may involve a remand for fact-finding proceedings"]).
As the plea and sentence minutes in this case do not contain any mention of the possible immigration or deportation consequences of the plea, we remit the matter to the Justice Court to afford defendant an opportunity to move, in that court, to withdraw his plea, notwithstanding that the Court of Appeals has not determined whether Peque applies to misdemeanor pleas (see People v Peque, 22 NY3d at 197, n 9; People v Dealmeida, 124 AD3d 1405, 1406 [2015]; People v Bassou, 44 Misc 3d 131[A], 2014 NY Slip Op 51078[U] [App Term, 1st Dept 2014]; People v Mothersil, 45 Misc 3d 927, 931 [Crim Ct, Kings County 2014]; see also People v Talbi, 45 Misc 3d 18, 20 [App Term, 2d, 11th & 13th Jud Dists 2014]; cf. People v Lionel, 2013 NY Slip Op 33486[U] [Sup Ct, Kings County 2013]).
Accordingly, the matter is remitted to the Justice Court to afford defendant an opportunity to move, within 90 days of this decision and order, to vacate his plea in accordance herewith and for a report thereafter on any such motion by defendant, and the appeal is held in abeyance pending receipt of the Justice Court's report. The Justice Court shall file its report with all convenient speed.
Marano, P.J., Garguilo and Connolly, JJ., concur.
Decision Date: December 31, 2015