People v. Cole

• Decision Date: 14 March 2018
• Docket Number: 9631/13,2015–00257,Ind. Nos. 9180/13,2015–01344
• Citation: 159 A.D.3d 829,69 N.Y.S.3d 829 (Mem)
• Parties: The PEOPLE, etc., respondent, v. Compton COLE, appellant.
• Court: New York Supreme Court — Appellate Division

159 A.D.3d 829

69 N.Y.S.3d 829 (Mem)

The PEOPLE, etc., respondent,

v.Compton COLE, appellant.

2015–00257

2015–01344

Ind. Nos. 9180/13

9631/13

Supreme Court, Appellate Division, Second Department, New York.

Submitted—November 16, 2017

March 14, 2018

Paul Skip Laisure, New York, N.Y. (Kathleen Whooley of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Solomon Neubort of counsel), for respondent.

REINALDO E. RIVERA, J.P., JEFFREY A. COHEN, ROBERT J. MILLER, BETSY BARROS, JJ.

DECISION & ORDER

Appeals by the defendant from two judgments of the Supreme Court, Kings County (Matthew J. D'Emic, J.), both rendered April 28, 2014, convicting him of criminal contempt in the first degree under Indictment No. 9180/13 and criminal contempt in the first degree under Indictment No. 9631/13, upon his pleas of guilty, and imposing sentences.

ORDERED that the matter is 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 on any such motion, and the appeals are held in abeyance in the interim. The Supreme Court, Kings County, shall file its report with all convenient speed.

In People v. Peque, 22 N.Y.3d 168, 980 N.Y.S.2d 280, 3 N.E.3d 617, 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, 980 N.Y.S.2d 280, 3 N.E.3d 617 ). A defendant seeking to vacate a plea based on this defect must demonstrate 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, 980 N.Y.S.2d 280, 3 N.E.3d 617 ).

Here, the record does not demonstrate that the Supreme Court apprised the defendant of the possibility of deportation as a consequence of the defendant's pleas. Accordingly, we remit the matter to the Supreme Court, Kings County, to afford the defendant an opportunity to move to vacate his pleas, 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 (see People v. Lopez–Alvarado, 149 A.D.3d 981, 52 N.Y.S.3d 418 ; People v. Agramonte, 148 A.D.3d 923, 924, 49 N.Y.S.3d 705 ; People v. Dennis, 140 A.D.3d 789, 790, 30 N.Y.S.3d 893 ; People v. Odle, 134 A.D.3d 1132, 1133, 21 N.Y.S.3d 727 ), and, 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 advised him of the possibility of deportation ( People v. Peque, 22 N.Y.3d at 176, 980 N.Y.S.2d 280, 3 N.E.3d 617 ; see People v. Agramonte, 148 A.D.3d at 924, 49 N.Y.S.3d 705 ; People v. Dennis, 140 A.D.3d at 790, 30 N.Y.S.3d 893; People v. Odle, 134 A.D.3d at 1133, 21 N.Y.S.3d 727; People v. Al–Muwallad, 121 A.D.3d...