Defendant moves to preclude certain testimony at a hearing concerning whether his plea of guilty should be vacated. Since defendant has yet to move to vacate his plea, and the Court has therefore not determined whether he has met his burden of showing that a hearing is warranted, the motion is DENIED as premature. Defendant is directed to file any motion to vacate his plea, if that is the relief he seeks, within thirty days of the date of this Order. I. Factual Background Defendant pled guilty on January 31, 2017, to one count of criminal possession of a controlled substance in the third degree (P.L. §220.16). On March 7, 2017, the Court (Sonberg, J.), imposed the promised sentence of two years’ imprisonment to be followed by two years of post-release supervision. Defendant filed a timely appeal, arguing that his counsel was ineffective because he gave the defendant incorrect advice about the immigration consequences of this conviction. A split panel of the Appellate Division, First Department, agreed in part. The court held that “[d]efendant was deprived of effective assistance when his counsel advised his client that because of his plea, he will most likely be deported, since it is clear that defendant’s drug-related conviction would trigger mandatory deportation.” People v. Johnson, 177 AD3d 484 (1st Dept. 2019). The appellate court held the appeal in abeyance, “to afford defendant the opportunity to move to vacate his plea upon a showing that there is a reasonable probability that he would not have pleaded guilty had he been made aware of the deportation consequences of his plea.” Id. II. Legal Discussion Under the mistaken belief that the Appellate Division “remanded” this matter for a “hearing” that would “provide Mr. Johnson an opportunity to show there is a reasonable probability that he would not have pled guilty had he been made aware of the deportation consequences of his plea,” defendant moves to preclude the People from eliciting certain testimony at that hearing. But defendant misconstrues the Appellate Division’s order. The court did not “remand” the case for a “hearing.” Firstly, if the Appellate Division had ordered a hearing on defendant’s ineffectiveness claim, it would likely have “remitted” the case, not “remanded” it, since in New York’s appellate courts “where necessary or proper, remit [matters] to another court for further proceedings.” C.P.L.R. §5522(a). See, e.g., People v. Winkler, 74 NY2d 704 (1989) (appropriate appellate remedy on an ineffectiveness claim was to “remit[] for a hearing”); People v. Clermont, 22 NY3d 931 (2013) (“remitting matter to Supreme Court for further proceedings on a suppression motion, including, if necessary a hearing”); cf. People v. Tiger, 32 NY2d 91 (2018) (error for Appellate Division to remit for a C.P.L. §440.10 hearing on a legally-invalid claim of actual innocence). Either a remand or a remittitur disposes of the appeal, although the nonprevailing party is free to file a subsequent appeal of the outcome on remand or remittitur. E.g., People v. Russell, 55 AD3d 940 (3d Dept. 2008) (deciding second appeal, after first appeal resulted in a remittitur for a new trial); People v. Goodman, 27 AD2d 692 (4th Dept. 1967) (remitting again, upon appeal from a remittitur); Here, the court neither remanded nor remitted the case. It held the appeal in abeyance, a disposition that the Appellate Division typically renders so that a party can litigate or relitigate a claim in either the trial or appellate court, e.g., People v. Butts, 67 AD2d 647 (1st Dept. 1979) (holding appeal in abeyance for supplemental briefing on whether sentence was excessive); People v. Lubrano, 296 AD2d 326 (1st Dept. 2002) (holding appeal in abeyance for further proceedings in Supreme Court on defendant’s C.P.L. §440.10 motion), and from which a second appeal is not necessary. E.g., People v. Johnson, 114 AD2d 423 (4th Dept. 1985) (treating report from lower court on remittitur as a branch of the original appeal). Nor did the First Department order a hearing. It held the appeal in abeyance so that the defendant could move to vacate his plea by making a showing of prejudice. That court did precisely the same thing, with perhaps a bit more clarity, in People v. Fermin, 123 AD3d 465 (1st Dept. 2014). That case, which is nearly identical to this one, involved a defendant whose plea was invalidated due to incorrect immigration advice — there from the court, not defense counsel, although the difference is immaterial, People v. Martinez, 180 .AD3d 190 (1st Dept. 2020), since the prejudice standard is the same. Fermin, 123 AD3d at 465. Fermin held the appeal in abeyance so that the defendant could pursue the “remedy set forth in [People v.] Peque.”Id. And the remedy mandated by Peque is clear: a return to the trial court “to allow [the defendant] to move to vacate his plea and develop a record relevant to the issue of prejudice.” People v. Peque, 22 NY3d 168, 200-01 (2013). See also People v. Charles, 117 AD3d 1073 (2d Dept. 2014) (“defendant should have the opportunity to move to vacate his plea upon a showing that there is a ‘reasonable probability’ that he would not have pleaded guilty had the court advised him of the possibility of deportation. If the defendant makes the requisite showing, the plea should be vacated”), citation to Peque omitted. It is quite apparent that the Peque remedy is that which the Appellate Division ordered here. The court did not order a hearing, but rather gave the defendant an opportunity to “move to vacate his plea and develop a record relevant to the issue of prejudice.” Id. To do so, defendant must “demonstrate that…neither his counsel nor the trial court informed him of the possibility of deportation [which the Appellate Division has already determined occurred here], and that he would not have pleaded guilty had he been so informed.” Id., emphasis added. Only after such a motion is filed, if ever, can the Court determine whether a hearing is warranted. “Upon a facially sufficient plea vacatur motion, the court should hold a hearing to provide the defendant with an opportunity to demonstrate prejudice.” Id. at 201. “In the absence of a showing of prejudice, the court should amend the judgment of conviction to reflect its ruling on defendant’s plea vacatur motion and otherwise leave the judgment undisturbed.” Id. And it is clear that the burden of showing prejudice lies with the defendant; if he fails to make that initial showing, no hearing is required. E.g., People v. Barry, 149 AD3d 494 (1st Dept. 2017); People v. Fernandez, 143 AD3d 505 (1st Dept. 2016); People v. Quezada, 65 Misc 3d 41(A) (App. Term. 1st Dept. 2019). Accordingly, defendant’s motion to preclude certain testimony at this as-yet-hypothetical hearing is premature. The Appellate Division’s decision came down on November 19, 2019, nearly seven months ago, and he has yet to move to vacate his plea. If he wishes to do so, he must file within thirty days of this Order or the Court will deem the claim abandoned. If defendant moves to vacate his plea, the Court can determine whether he has sufficiently pled prejudice to warrant a hearing. And if the Court grants a hearing, defendant can then be heard on the parameters of that hearing, including which testimony, if any, should be precluded. III. Conclusion Defendant’s motion to preclude is denied. Defendant is directed to file any motion to vacate his plea within thirty days of this Order, if that is indeed the relief he seeks. This constitutes the Decision and Order of the Court. Dated: June 11, 2020
