Appeal from a judgment of the Justice Court of the Village of Dobbs Ferry, Westchester County (Steven P. Grant, J.), rendered July 27, 2017. The judgment convicted defendant, upon his plea of guilty, of harassment in the second degree, and imposed sentence. By decision and order of this court dated February 20, 2020, the appeal was held in abeyance and the matter was remitted to the Justice Court to afford defendant an opportunity to move to vacate his plea of guilty, and for the Justice Court to report on any such motion (People v. Taylor, 66 Misc 3d 149[A], 2020 NY Slip Op 50269[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2020]). The Justice Court (David A. Koenigsberg, J.) has filed its report. JERRY GARGUILO, JUSTICE ORDERED that the judgment of conviction is reversed, on the law, the guilty plea is vacated, and the matter is remitted to the Justice Court for all further proceedings. Defendant, a 17-year-old minor without a criminal record, was charged in an accusatory instrument with harassment in the second degree (Penal Law §240.26 [1]) for punching a 16-year-old minor on the right side of his face. On July 27, 2017, defendant pleaded guilty to this charge and was sentenced to a one-year conditional discharge. Defendant, who is not a citizen of the United States, filed a notice of appeal from the judgment of conviction, arguing that his plea was infirm. ” ‘[D]ue process compels a trial court to 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’” (People v. Delorbe, 35 NY3d 112, 115 [2020], quoting People v. Peque, 22 NY3d 168, 176 [2013]). In light of the Justice Court’s failure to inform defendant during the plea colloquy that he could possibly be deported as a result of the plea (see Peque, 22 NY3d at 197), this court, by decision and order dated February 20, 2020, remitted the matter to the Justice Court to afford defendant the opportunity to move to vacate his guilty plea, and for the Justice Court to report on any such motion (see People v. Taylor, 66 Misc 3d 149[A], 2020 NY Slip Op 50269[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2020]). For his vacatur motion to succeed, defendant would have to present evidence to the court that satisfied his burden of “establish[ing] the existence of a reasonable probability that, had the court warned the defendant of the possibility of deportation, he…would have rejected the plea and opted to go to trial” (Peque, 22 NY3d at 176; see People v. Charles, 117 AD3d 1073 [2014]). Defendant made his motion and explained in his supporting affidavit that he moved to Brooklyn from Jamaica when he was 11 years old, has not returned to Jamaica since and wishes to remain in the United States. The Justice Court, in a report dated July 14, 2021, found “that defendant has presented evidence sufficient to show that there was a reasonable probability that had the court warned defendant of the possibility of deportation he would have rejected the plea offer in this case and opted to go to trial.” We agree. This evidence included the fact that, had defendant, who pleaded guilty to the sole count of the accusatory instrument, instead elected to go to trial and been convicted, “the [potential immigration] consequences would be the same since he pleaded guilty as charged.” Accordingly, the judgment of conviction is reversed, the guilty plea is vacated, and the matter is remitted to the Justice Court for all further proceedings. GARGUILO, P.J., DRISCOLL and VOUTSINAS, JJ., concur. Dated: May 19, 2022
