People v. Hernandez ( 2023 )

People v Hernandez (2023 NY Slip Op 06752)

People v Hernandez

2023 NY Slip Op 06752

Decided on December 27, 2023

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 27, 2023 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
ANGELA G. IANNACCI, J.P.
PAUL WOOTEN
WILLIAM G. FORD
HELEN VOUTSINAS, JJ.

2019-07663
(Ind. No. 580/18)

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

v

Jose L. Hernandez, appellant.

Laurette D. Mulry, Riverhead, NY (Amanda E. Schaefer of counsel), for appellant.

Raymond A. Tierney, District Attorney, Riverhead, NY (Kim Marie Carson and Marion Tang of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Suffolk County (Anthony Senft, J.), rendered February 25, 2019, convicting him of assault in the second degree (two counts) and endangering the welfare of a child (two counts), upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing, of the defendant's motion to suppress certain statements, including to law enforcement officials. By decision and order of this Court dated March 22, 2023, the matter was remitted to the County Court, Suffolk County, to afford the defendant an opportunity to move to vacate his plea of guilty in accordance therewith, and for a report on any such motion. The appeal was held in abeyance in the interim (People v Hernandez, 214 AD3d 900, 901). The County Court, Suffolk County, has now filed its report. Justice Ford has been substituted for former Justice Rivera (see 22 NYCRR 1250.1[b]).

ORDERED that the matter is remitted to the County Court, Suffolk County, for a hearing on the defendant's motion to vacate his plea, and for a report thereafter, and the appeal is held in abeyance in the interim. The County Court, Suffolk County, shall file its report with all convenient speed.

The defendant contended that his plea of guilty was not knowingly and voluntarily entered because the record of the plea proceeding demonstrated that the County Court never advised him of the possibility that he would be deported as a consequence of his plea. In a prior decision and order, this Court remitted the matter to the County Court, Suffolk County, to afford the defendant an opportunity to move to vacate his plea, and for a report by the County Court thereafter (see People v Hernandez, 214 AD3d 900, 901). We noted that "[a] defendant seeking to vacate a plea based on a court's failure to provide such a warning must demonstrate that there is a reasonable probability that, had the court informed the defendant of the possibility of deportation, he or she would have rejected the plea and chosen instead to go to trial " (id. at 900-901; see People v Peque, 22 NY3d 168, 176). In its report, the County Court found, without a hearing, that the defendant failed to meet this burden.

According to the defendant's motion and exhibits, he allegedly immigrated to the United States at approximately 17 years of age, resided here for approximately 26 years, was employed in the United States, and had two children here. Under the circumstances of this case, the [*2]defendant's allegations in his motion that he would not have pleaded guilty and would instead have gone to trial had the court warned him of the possibility of deportation, were sufficient to raise an issue of fact in that regard (see People v Roberts, 143 AD3d 843, 845-846; People v Picca, 97 AD3d 170, 183-185). Therefore, the County Court erred in deciding the defendant's motion to vacate his plea without a hearing.

We therefore remit the matter to the County Court, Suffolk County, for a hearing on the motion, and for a report thereafter. We hold the appeal in abeyance pending receipt of the court's report. We express no opinion as to the merits of the defendant's motion.

In light of our determination, we do not address the defendant's remaining contentions at this time.

IANNACCI, J.P., WOOTEN, FORD and VOUTSINAS, JJ., concur.

ENTER:

Darrell M. Joseph

Acting Clerk of the Court