People v Mohamed (2019 NY Slip Op 02557) People v Mohamed 2019 NY Slip Op 02557 Decided on April 3, 2019 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 April 3, 2019 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department MARK C. DILLON, J.P. CHERYL E. CHAMBERS ROBERT J. MILLER COLLEEN D. DUFFY, JJ. 2014-05045 (Ind. No. 10182/13) [*1]The People of the State of New York, respondent, vNaseer Mohamed, appellant. Paul Skip Laisure, New York, NY (Ronald Zapata of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, and Danielle S. Fenn of counsel), for respondent. DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Queens County (Barry Kron, J.), rendered August 13, 2013, convicting him of criminal sale of a controlled substance in the third degree, upon his plea of guilty, and imposing sentence. ORDERED that the matter is remitted to the Supreme Court, Queens 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, Queens County, shall file its report with all convenient speed. In People v Peque (22 NY3d 168), the Court of Appeals held that, as a matter of "fundamental fairness," due process requires that a court apprise a noncitizen pleading guilty to a felony of the possibility of deportation as a consequence of the plea of guilty (id. at 193). "Mindful of the burden this rule imposes on busy and calendar-conscious trial courts, they are to be afforded considerable latitude in stating the requisite advice" (id. at 197). A defendant seeking to vacate a plea based on this defect 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 the possibility of deportation (id. at 176). In this case, the defendant contends, inter alia, that his plea of guilty was not knowing, voluntary, and intelligent because the record demonstrates that the Supreme Court never advised him of the possibility that he would be deported as a consequence of his plea. The People argue, among other things, that this contention is unpreserved for appellate review. "When a defendant pleads guilty to a crime, he or she generally must move to withdraw the plea or otherwise object to its entry prior to the imposition of sentence to preserve a challenge to the validity of the plea for appellate review" (People v Williams, 27 NY3d 212, 214). Accordingly, as relevant here, a defendant is generally required to preserve a contention that a court failed to advise him or her of the possibility of deportation as ...
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