You are here: / / THERE IS AN EXCEPTION TO THE PRESERVATION REQUIREMENT WHERE A DEFENDANT...
, ,

THERE IS AN EXCEPTION TO THE PRESERVATION REQUIREMENT WHERE A DEFENDANT IS UNAWARE OF THE DEPORTATION CONSEQUENCES OF A GUILTY PLEA AND THEREFORE DID NOT MOVE TO WITHDRAW THE PLEA ON THAT GROUND (SECOND DEPT).

The Second Department, remitting the matter to give the defendant the opportunity to move to vacate his guilty plea on the ground he was not aware of the possibility of deportation. The court explained the relevant exception to the preservation requirement:

“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” … . 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 … .

There is, however, a narrow exception to this general rule. Preservation is not required “where a defendant has no practical ability to object to an error in a plea allocution which is clear from the face of the record” … . 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 failure to apprise him or her of that potential consequence … . A defendant, of course, “can hardly be expected to move to withdraw his [or her] plea on a ground of which he [or she] has no knowledge” … . People v Jones, 2021 NY Slip Op 06701, Second Dept 12-1-21

 

You might also like
IN THIS MEDICAL MALPRACTICE ACTION, DEFENDANTS’ EXPERTS DID NOT ADDRESS ALL THE ALLEGATIONS IN THE BILLS OF PARTICULARS AND RELIED ON A DISPUTED FACT; DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
DEFENDANT DRIVER ENTITLED TO SUMMARY JUDGMENT UNDER THE EMERGENCY DOCTRINE.
SECOND MECHANIC’S LIEN MAY BE FILED TO CORRECT THE NAMING OF THE WRONG CONTRACTOR IN THE FIRST LIEN (SECOND DEPT).
THE ATTORNEY FOR THE CHILD (AFC) TOOK AND ADVOCATED POSITIONS WHICH WERE CONTRARY TO THE WISHES OF THE CHILDREN; NEW CUSTODY HEARING ORDERED WITH A NEW AFC (SECOND DEPT).
SUPREME COURT SHOULD NOT HAVE, SUA SPONTE, DETERMINED THE PROVISION OF AN “AGREEMENT OF PURCHASE AND SALE OF STOCK” WHICH CALLED FOR RECOVERY OF DOUBLE ATTORNEYS FEES BY THE PREVAILING PARTY IN LITIGATION WAS AN UNENFORCEABLE PENALTY (SECOND DEPT).
THE AFFIANT DID NOT DEMONSTRATE PERSONAL KNOWLEDGE OF THE MAILING PROCEDURES AND DID NOT LAY A FOUNDATION FOR THE ATTACHED BUSINESS RECORDS; THEREFORE THE BANK IN THIS FORECLOSURE ACTION DID NOT PROVE THE RPAPL 1304 NOTICE WAS PROPERLY MAILED, A CONDITION PRECEDENT FOR FORECLOSURE (SECOND DEPT). ​
Resort to Contempt for Failure to Make Payments Appropriate
THE PATIENT IN A PSYCHIATRIC FACILITY DID NOT KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVE HER RIGHT TO COUNSEL IN THIS PROCEEDING TO PROVIDE TREATMENT WITHOUT HER CONSENT (SECOND DEPT).

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

EVEN THOUGH THE RECONSTRUCTION OF THE EAST RIVER PARK WILL BENEFIT THE SURROUNDING... THE CHALLENGE TO A JUROR WHO SAID HE WOULD FAVOR THE TESTIMONY OF THE POLICE...