People v Ulanov (2020 NY Slip Op 07108) People v Ulanov 2020 NY Slip Op 07108 Decided on November 25, 2020 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 November 25, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department RUTH C. BALKIN, J.P. JOHN M. LEVENTHAL SHERI S. ROMAN BETSY BARROS, JJ. 2017-12068 (Ind. No. 402/15) [*1]The People of the State of New York, respondent, vJennifer Ulanov, appellant. Janet E. Sabel, New York, NY (Whitney Elliott of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Joyce Slevin, and Solomon Neubort of counsel), for respondent. DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Kings County (Danny K. Chun, J.), rendered March 2, 2017, convicting her of grand larceny in the second degree, forgery in the second degree (21 counts), and falsifying business records in the first degree (12 counts), upon her plea of guilty, and imposing sentence. ORDERED that the matter is remitted to the Supreme Court, Kings County, to afford the defendant an opportunity to move to vacate her plea of guilty in accordance herewith, and for a report on any such motion, 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 pleaded guilty to grand larceny in the second degree, forgery in the second degree (21 counts), and falsifying business records in the first degree (12 counts). On appeal, she contends that her due process rights were violated because the record demonstrates that the Supreme Court never advised her of the possibility that she could be deported as a consequence of her guilty plea. In People v Peque (22 NY3d 168, 196), the Court of Appeals held that "to protect the rights of the large number of noncitizen defendants pleading guilty to felonies in New York, trial courts must now make all defendants aware that, if they are not United States citizens, their felony guilty pleas may expose them to deportation." A defendant seeking to vacate a plea based on the failure to warn of deportation consequences 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 that possibility (id. at 176). In the present case, the defendant's contention that her due process rights were violated due to the plea court's failure to warn her of the deportation consequences of her plea is excepted from the preservation requirement because, despite notations in the presentence investigation report regarding the defendant's immigration status, the record does not demonstrate that the defendant was aware that she could be deported as a consequence of her guilty plea. Thus, the defendant had no opportunity to move to vacate ...
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