PUSKAR, ELVIRA M., PEOPLE v ( 2017 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
446
KA 09-01272
PRESENT: WHALEN, P.J., SMITH, CENTRA, TROUTMAN, AND SCUDDER, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
ELVIRA M. PUSKAR, DEFENDANT-APPELLANT.
REBECCA L. WITTMAN, UTICA, FOR DEFENDANT-APPELLANT.
SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Oneida County Court (Michael L.
Dwyer, J.), rendered December 8, 2008. The judgment convicted
defendant, upon her plea of guilty, of criminal possession of a
controlled substance in the third degree.
It is hereby ORDERED that the case is held, the decision is
reserved and the matter is remitted to Oneida County Court for further
proceedings in accordance with the following memorandum: Defendant
appeals from a judgment convicting her, upon her plea of guilty, of
criminal possession of a controlled substance in the third degree
(Penal Law § 220.16 [1]). As the People correctly concede, County
Court failed to advise defendant, a noncitizen, of the deportation
consequences of her felony guilty plea, as required by People v Peque
(22 NY3d 168). We therefore hold the case, reserve decision and remit
the matter to County Court to afford defendant the opportunity to move
to vacate her plea based upon a showing that there is a “reasonable
probability” that she would not have pleaded guilty had she known that
she faced the risk of being deported as a result of the plea (id. at
176; see People v Odle, 134 AD3d 1132, 1133; People v Medina, 132 AD3d
1363, 1363-1364).
Entered: April 28, 2017 Frances E. Cafarell
Clerk of the Court