Opinion
2017-2002 W CR
02-20-2020
The PEOPLE of the State of New York, Respondent, v. Fuquan TAYLOR, Appellant.
Thomas T. Keating, for appellant. Westchester County District Attorney (Christine DiSalvo and William C. Milaccio of counsel), for respondent.
Thomas T. Keating, for appellant.
Westchester County District Attorney (Christine DiSalvo and William C. Milaccio of counsel), for respondent.
PRESENT: THOMAS A. ADAMS, P.J., BRUCE E. TOLBERT , JERRY GARGUILO, JJ
ORDERED that the matter is remitted to the Justice 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 Justice Court's report, which shall be filed with all convenient speed.
Defendant pleaded guilty to harassment in the second degree ( Penal Law § 240.26 [1] ), as charged in the accusatory instrument. On appeal, citing to People v Peque (22 NY3d 168, 197 [2013] ), defendant contends that the Justice Court failed to advise him that his guilty plea may subject him to adverse immigration consequences and, therefore, the plea should be vacated and the matter remitted to the Justice Court for further proceedings. The People concede that the Justice Court failed to advise defendant of the immigration consequences of his guilty plea and, assuming that a Peque warning is required when a defendant pleads guilty to a violation, as was the case herein, they agree that the appeal should be held in abeyance and the matter remitted to the Justice Court to afford defendant an opportunity to move to vacate his plea.
In 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" ( 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. Furthermore, it did not even allude to whether that rule applies to a guilty plea to a violation, such as the plea involved herein. Assuming, without deciding, that Peque also applies to guilty pleas to violations, here, the record does not demonstrate either that the Justice Court mentioned, or that defendant was otherwise aware of, the possibility of deportation. In fact, in its return, the Justice Court admitted that it had failed to advise defendant of this possibility. Since defendant was sentenced in the same proceeding in which he entered his plea of guilty, he had no practical ability to object to the deficiency in the plea allocution, which was clear from the face of the record (see Peque , 22 NY3d at 182 ), 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 People v Mohamed , 171 AD3d 796 [2019] ). Consequently, defendant's claim is reviewable on this appeal despite the fact that he did not move to withdraw his plea or to vacate the judgment of conviction (see People v Conceicao , 26 NY3d 375, 382 [2015] ; People v Hutchinson , 61 Misc 3d 153[A], 2018 NY Slip Op 51805[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]; see also Mohamed , 171 AD3d at 797 ; 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" (id. ). In light of the Justice 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 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 Justice Court to afford defendant an opportunity to move to vacate his plea, and for a report by that court thereafter (see People v Artwell , 64 Misc 3d 65 [App Term, 2d Dept, 9th & 10th Jud Dists 2019]; People v Gonzalez , 54 Misc 3d 139[A], 2017 NY Slip Op 50152[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2017] ). Any such motion shall be made by defendant within 90 days after the date of this decision and order. Finally, the Justice Court's report to this court shall state whether defendant moved to vacate his guilty plea, and, if so, the Justice Court shall make a finding as to whether defendant successfully demonstrated or failed to demonstrate the necessary showing (see People v Cole , 159 AD3d 829 [2018] ).
Accordingly, the matter is remitted to the Justice 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 Justice Court's report. The Justice Court shall file its report with all convenient speed.
ADAMS, P.J., TOLBERT and GARGUILO, JJ., concur.