People v Hernandez (2023 NY Slip Op 01530) People v Hernandez 2023 NY Slip Op 01530 Decided on March 22, 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 March 22, 2023 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department ANGELA G. IANNACCI, J.P. REINALDO E. RIVERA PAUL WOOTEN HELEN VOUTSINAS, JJ. 2019-07663 (Ind. No. 580/18) [*1]The People of the State of New York, respondent, vJose 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 his statements to law enforcement officials. ORDERED that the matter is remitted to the County Court, Suffolk 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 County Court, Suffolk County, shall file its report with all convenient speed. Due process requires that a trial court "apprise a defendant that, if the defendant is not an American citizen, he or she may be deported as a consequence of a guilty plea to a felony" (People v Peque, 22 NY3d 168, 176). 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 (see id. at 176). In this case, the defendant contends, inter alia, that his plea of guilty should be vacated because the County Court did not advise him of the possibility of deportation as a consequence of his guilty plea. The People argue, among other things, that this contention is unpreserved for appellate review. A defendant is generally required to preserve a contention that a court failed to advise him or her of the possibility of deportation as a consequence of pleading guilty (see People v Pastor, 28 NY3d 1089, 1090). There is, however, a narrow exception to this general rule. "The exception applies where the defendant is unaware of the possibility of deportation during the plea and sentencing proceedings, and, therefore, has no opportunity (as well as no motivation) to move to withdraw his or her plea based on the court's …
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