People v. Al-Muwallad

• Citation: 995 N.Y.S.2d 200,121 A.D.3d 1123,2014 N.Y. Slip Op. 07361
• Decision Date: 29 October 2014
• Docket Number: 2011-00525, Ind. No. 3776/09.
• Court: New York Supreme Court Appellate Division
• Parties: The PEOPLE, etc., respondent, v. Saleh AL–MUWALLAD, appellant.

121 A.D.3d 1123
995 N.Y.S.2d 200
2014 N.Y. Slip Op. 07361

The PEOPLE, etc., respondent
v.
Saleh AL–MUWALLAD, appellant.

2011-00525, Ind. No. 3776/09.

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

Oct. 29, 2014.

995 N.Y.S.2d 201

Lynn W.L. Fahey, New York, N.Y., for appellant.

Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Solomon Neubort of counsel), for respondent.

RUTH C. BALKIN, J.P., CHERYL E. CHAMBERS, ROBERT J. MILLER, and SYLVIA O. HINDS–RADIX, JJ.

Opinion

121 A.D.3d 1123

Appeal by the defendant from a judgment of the Supreme Court, Kings County (D'Emic, J.), rendered July 8, 2010, convicting him of murder in the second degree, upon his plea of guilty, and imposing sentence.

121 A.D.3d 1124

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

The defendant contends that his plea of guilty was not knowingly and voluntarily entered because the record of the plea proceeding demonstrated that the Supreme Court never advised him of the possibility that he would be deported as a consequence of his plea. 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 176, 193, 197, 980 N.Y.S.2d 280, 3 N.E.3d 617 ). 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, 980 N.Y.S.2d 280, 3 N.E.3d 617 ).

Here, inasmuch as the record does not demonstrate either that the Supreme Court mentioned, or that the defendant was otherwise aware...