People v Odle

People v Odle 2015 NY Slip Op 09699 Decided on December 30, 2015 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 30, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
JOHN M. LEVENTHAL, J.P.
CHERYL E. CHAMBERS
SANDRA L. SGROI
JEFFREY A. COHEN, JJ.
2013-10815
(Ind. No. 2131/09)

[*1]The People of the State of New York, respondent,

v

Corey Odle, appellant.

Lynn W. L. Fahey, New York, NY (Leila Hull of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, and Nancy Fitzpatrick Talcott of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Aloise, J.), rendered April 24, 2013, convicting him of criminal sale of a firearm in the third degree, upon his plea of guilty, and imposing sentence.

ORDERED that the matter is remitted to the Supreme Court, Queens County, to afford the defendant an opportunity to move to vacate his plea in accordance herewith, and for a report on any such motion, and the appeal is held in abeyance in the interim. The Supreme Court, Queens County, shall file its report with all convenient speed.

Relying upon People v Peque (22 NY3d 168) the defendant contends that his plea of guilty was not knowing and voluntary because the plea record demonstrates that the court never advised him of the possibility that he would be deported as a consequence of his plea. In Peque, the Court of Appeals held that, as a matter of "fundamental fairness," due process requires that a court apprise a noncitizen pleading guilty to a felony of the possibility of deportation as a consequence of the plea of guilty (id. at 193). A defendant seeking to vacate a plea based on this defect must establish that there is a "reasonable probability" that he or she would not have pleaded guilty and would instead have gone to trial had the court warned of the possibility of deportation (id. at 176, 198).

As a threshold matter, we disagree with the People's contention that Peque should only apply prospectively. Inasmuch as Peque, decided after the defendant's plea, involved federal constitutional principles, it must be applied to this direct appeal (see People v Llibre, 125 AD3d 422, 424; People v Manon, 123 AD3d 467; People v Brazil, 123 AD3d 466; cf. People v Martello, 93 NY2d 645, 650; People v Pena, 132 AD3d 910). Contrary to the People's contention, the record does not demonstrate either that the Supreme Court mentioned, or that the defendant was otherwise aware of, the possibility of deportation. Therefore, the defendant's claim is not subject to the requirement of preservation (see People v Peque, 22 NY3d at 182-183; People v Louree, 8 NY3d 541, 546; People v Charles, 117 AD3d 1073, 1074).

Under the circumstances of this case, we deem it appropriate to remit the matter to the Supreme Court, Queens County, to afford the defendant an opportunity to move to vacate his [*2]plea, and for a report by the Supreme Court thereafter. Any such motion shall be made by the defendant within 60 days after the date of this decision and order, and upon such motion, the defendant will have the burden of establishing at a hearing that there is a "reasonable probability" that he would not have pleaded guilty had the court advised him of the possibility of deportation (People v Peque, 22 NY3d at 176; see People v Charles, 117 AD3d at 1073). In its report to this Court, the Supreme Court shall state whether the defendant made a motion to withdraw his plea, and if so, shall set forth its finding as to whether the defendant made the requisite showing or failed to make the requisite showing.

LEVENTHAL, J.P., CHAMBERS, SGROI and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court