People v. Kostyk

• Citation: 94 N.Y.S.3d 452 (Mem),170 A.D.3d 1042
• Decision Date: 20 March 2019
• Docket Number: 2014–06844,Ind. Nos. 7935/12, 10635/12,2014–06843
• Parties: The PEOPLE, etc., Respondent, v. Roman KOSTYK, Appellant.
• Court: New York Supreme Court Appellate Division

170 A.D.3d 1042
94 N.Y.S.3d 452 (Mem)

The PEOPLE, etc., Respondent,
v.
Roman KOSTYK, Appellant.

2014–06843
2014–06844
Ind. Nos. 7935/12, 10635/12

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

Submitted—November 26, 2018
March 20, 2019

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

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

MARK C. DILLON, J.P., JOHN M. LEVENTHAL, FRANCESCA E. CONNOLLY, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

Appeals by the defendant from two judgments of the Supreme Court, Kings County (Matthew D'Emic, J.), both rendered August 8, 2013, convicting him of burglary in the second degree and criminal trespass in the second degree under Indictment No. 7935/12, and burglary in the second degree and criminal trespass in the second degree under Indictment No. 10635/12, 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 his pleas. Accordingly, we remit the matter...