You are here: / / APPEAL HELD AND MATTER REMITTED TO ALLOW DEFENDANT TO MOVE TO VACATE HIS...
, ,

APPEAL HELD AND MATTER REMITTED TO ALLOW DEFENDANT TO MOVE TO VACATE HIS GUILTY PLEA ON THE GROUND HE WAS NOT INFORMED OF THE DEPORTATION CONSEQUENCES (SECOND DEPT).

The Second Department held the appeal in abeyance and remitted the matter to give defendant the opportunity to move the vacate his guilty plea on the ground he was not informed of the possibility he would be deported based on his plea:

“A defendant seeking to vacate a plea based on this failure must demonstrate that there is a ‘reasonable probability’ that he or she would not have entered a plea of guilty and would instead have gone to trial had the court warned of the possibility of deportation” … . Here, in the absence of the warning required under People v Peque (22 NY3d at 176), we remit the matter to the Supreme Court, Queens County, to afford the defendant an opportunity to move to vacate his plea, and thereafter for a report to this Court limited to the Supreme Court’s findings with respect to whether the defendant has moved to vacate his plea of guilty and whether he has established his entitlement to the withdrawal of his plea. Any such motion shall be made by the defendant within 60 days after the date of this decision and order, and, upon such motion, the defendant will have the burden of establishing that there is a “reasonable probability” that he would not have pleaded guilty had the court advised him of the possibility of deportation … . We hold the appeal in abeyance pending receipt of the Supreme Court’s report. We express no opinion as to the merits of the defendant’s motion, should he make one … . People v Torres, 2021 NY Slip Op 02424, Second Dept 4-21-21

 

You might also like
ALTHOUGH VACATING A JUDGMENT STEMMING FROM A CONFESSION OF JUDGMENT MUST ORDINARILY BE ACCOMPLISHED BY BRINGING A PLENARY ACTION, A MOTION TO VACATE IS APPROPRIATE WHERE IT IS ALLEGED THE COURT WHICH ENTERED THE JUDGMENT DID NOT HAVE SUBJECT MATTER JURISDICTION; HERE THE MOTION TO VACATE WAS THE CORRECT VEHICLE BUT THE MOTION WAS PROPERLY DENIED ON THE MERITS (SECOND DEPT).
ORDER OF PROTECTION ISSUED BY AN INTEGRATED DOMESTIC VIOLENCE COURT AS PART OF A CRIMINAL PROCEEDING CAN BE APPEALED BUT NOT MODIFIED BY MOTION, HERE THE CRIMINAL ORDER OF PROTECTION COULD NOT BE MODIFIED BY A SUBSEQUENT CHILD NEGLECT PROCEEDING ORDER OF PROTECTION ISSUED BY THE SAME COURT.
PORTIONS OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED AS UNTIMELY; THE PORTION OF THE UNTIMELY MOTION WHICH HAD BEEN TIMELY RAISED BY ANOTHER DEFENDANT WAS PROPERLY CONSIDERED; THE LABOR LAW 241(6) CAUSE OF ACTION PROPERLY RELIED ON INDUSTRIAL CODE PROVISIONS REQUIRING THAT ELECTRICAL POWER BE SHUT DOWN TO PROTECT ELECTRICAL WORKERS (SECOND DEPT).
Federal Arbitration Act Applies When Interstate Commerce Involved
PEDESTRIAN STRUCK WHILE LAWFULLY IN CROSSWALK ENTITLED TO SUMMARY JUDGMENT, SUPREME COURT REVERSED.
ADVERSE INFERENCE JURY INSTRUCTION IS THE PROPER SANCTION FOR THE NEGLIGENT DESTRUCTION OF AN EMPLOYEE’S RECORDS IN THIS NEGLIGENT SUPERVISION ACTION AGAINST A RESPITE CARE FACILITY (SECOND DEPT).
THE 18 USC 1983 CAUSE OF ACTION AGAINST THE POLICE AND MUNICIPALITY WAS PROPERLY DISMISSED BECAUSE THE DOCTRINE OF REPONDEAT SUPERIOR DOES NOT APPLY AND THERE WAS NO EVIDENCE THE POLICE WERE ACTING PURSUANT TO A MUNICIPAL CUSTOM OR POLICY WHEN THEY ALLEGEDLY PUSHED PLAINTIFF TO THE GROUND, HANDCUFFED HER AND TASED HER; HOWEVER THE BATTERY CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).
QUESTION OF FACT WHETHER EMPLOYEE WAS ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN THE CAR ACCIDENT OCCURRED.

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

THE RECORD DOES NOT DEMONSTRATE SUPREME COURT CONSIDERED WHETHER DEFENDANT SHOULD... THE PARTIES MARRIED IN 1974, STARTED DIVORCE PROCEEDINGS IN 1991, DISCONTINUED...