People v Jones (2021 NY Slip Op 06701) People v Jones 2021 NY Slip Op 06701 Decided on December 1, 2021 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 1, 2021 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department MARK C. DILLON, J.P. BETSY BARROS LINDA CHRISTOPHER JOSEPH A. ZAYAS, JJ. 2018-12856 (Ind. No. 5699/14) [*1]The People of the State of New York, respondent, vVernon A. Jones, appellant. Patricia Pazner, New York, NY (Paris DeYoung of counsel), for appellant. Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Solomon Neubort, and Daniel Berman of counsel), for respondent. DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Kings County (ShawnDya L. Simpson, J.), rendered October 17, 2017, convicting him of assault in the first degree and assault in the second degree, upon his 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 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. 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 that his plea of guilty was not knowing, intelligent, and voluntary because the Supreme Court's discussion of immigration consequences was inadequate, since it never specifically mentioned deportation, and was otherwise confusing. The People argue, among other things, that this contention is unpreserved for appellate review. "Generally, in order to preserve a claim that a guilty plea is invalid, a defendant must move to withdraw the plea on the same grounds subsequently alleged on appeal or else file a motion to vacate the judgment of conviction pursuant to CPL 440.10" (People v Delorbe, 35 NY3d 112, 119 [internal quotation marks omitted]; see People v Mohamed, 171 AD3d 796, 797). Thus, as relevant here, a defendant is ordinarily required to preserve the contention that his or her plea of guilty was not knowing, intelligent, and voluntary because the court failed to advise him or her that the plea could expose him or her to the risk of deportation (see People v Pastor, …
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