Opinion
2017-2030 Q CR
08-21-2020
The PEOPLE of the State of New York, Respondent, v. Roman NIKOGHOSYAN, Appellant.
Feldman and Feldman (Steven A. Feldman of counsel), for appellant. Queens County District Attorney (John M. Castellano, Johnnette Traill, Ellen C. Abbot and John F. McGoldrick of counsel), for respondent.
Feldman and Feldman (Steven A. Feldman of counsel), for appellant.
Queens County District Attorney (John M. Castellano, Johnnette Traill, Ellen C. Abbot and John F. McGoldrick of counsel), for respondent.
PRESENT: THOMAS P. ALIOTTA, P.J., BERNICE D. SIEGAL, WAVNY TOUSSAINT, JJ.
ORDERED that the matter is remitted to the Criminal Court to afford defendant an opportunity to move, within 90 days of the date of this decision and order, to vacate his plea, in accordance with this decision and order, and for a report thereafter on any such motion by defendant, and the appeal is held in abeyance pending the receipt of the Criminal Court's report, which shall be filed with all convenient speed.
Defendant pleaded guilty to one of the five counts of criminal possession of a weapon in the fourth degree ( Penal Law § 265.01 [1] ) charged in the accusatory instrument. On appeal, citing to People v. Peque (22 NY3d 168, 197 [2013] ), defendant contends that the Criminal Court failed to advise him that his guilty plea may subject him to adverse immigration consequences, including deportation, and, therefore, the plea should be vacated and the matter remitted to the Criminal Court for further proceedings.
In Peque , the Court of Appeals determined, in accordance with the decision of the United States Supreme Court in Padilla v. Kentucky (559 US 356 [2010] ), "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" ( Peque , 22 NY3d at 176 ). 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" ( Peque , 22 NY3d at 197 ). However, in Peque (22 NY3d at 197, n 9 ), the Court expressly reserved the question as to whether that rule applies to a guilty plea to a misdemeanor, such as the plea involved herein. Assuming, without deciding, that Peque also applies to misdemeanors, here, the record does not demonstrate either that the Criminal Court mentioned, or that defendant was otherwise aware of, the possibility of deportation. Since defendant was sentenced in the same proceeding in which he entered his plea of guilty, and was not otherwise made aware of the deportation consequences of his plea (cf. People v. Delorbe , 35 NY3d 112 [2020] ), he had no practical ability to object to the deficiency in the plea allocution, which was clear from the face of the record, 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 (see Peque , 22 NY3d at 182 ). Consequently, defendant's claim falls within the narrow exception to the preservation doctrine since he had no opportunity to withdraw or move to vacate his plea (see Peque , 22 NY3d at 183 ; People v. Taylor , 66 Misc 3d 149[A], 2020 NY Slip Op 50269[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2020]; People v. Bello , 55 Misc 3d 152[A], 2017 NY Slip Op 50769[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017] ).
However, "the trial court's failure to provide such advice does not entitle ... defendant to automatic withdrawal or vacatur of the plea" ( Peque , 22 NY3d at 176 ). Rather, a defendant seeking to vacate a plea based on this defect "must establish the existence of a reasonable probability that, had the court warned the defendant of the possibility of deportation, he or she would have rejected the plea and opted to go to trial" ( Peque , 22 NY3d at 176 ). Therefore, in light of the Criminal Court's failure to apprise defendant of the possibility of deportation as a consequence of his plea, and the fact that defendant has not met his burden, on the record before us, of establishing the existence of a reasonable probability that, had the court properly warned him, he would have rejected the plea and opted to go to trial, we deem it appropriate to hold the appeal in abeyance and to remit the matter to the Criminal Court to afford defendant an opportunity to move to vacate his plea, and for a report by that court thereafter (see Peque , 22 NY3d at 198, n 11 ; People v. Cole , 159 AD3d 829 [2018] ; Taylor , 66 Misc 3d 149[A], 2020 NY Slip Op 50269[U] ; Bello , 55 Misc 3d 152[A], 2017 NY Slip Op 50769[U] ). Any such motion shall be made by defendant within 90 days after the date of this decision and order. Finally, the Criminal Court's report to this court shall state whether defendant moved to vacate his guilty plea, and, if so, the Criminal Court shall include in the report a finding as to whether defendant successfully demonstrated or failed to demonstrate the necessary showing (see Cole , 159 AD3d 829 ; Taylor , 66 Misc 3d 149[A], 2020 NY Slip Op 50269[U] ).
Accordingly, the matter is remitted to the Criminal Court to afford defendant an opportunity to move, within 90 days of the date of this decision and order, to vacate his plea, in accordance with this decision and order, and for a report thereafter on any such motion by defendant, and the appeal is held in abeyance pending receipt of the Criminal Court's report. The Criminal Court shall file its report with all convenient speed.
ALIOTTA, P.J., SIEGAL and TOUSSAINT, JJ., concur.