

People v Ghingoree (2017 NY Slip Op 03770)





People v Ghingoree


2017 NY Slip Op 03770


Decided on May 10, 2017


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 May 10, 2017
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

CHERYL E. CHAMBERS, J.P.
L. PRISCILLA HALL
JOSEPH J. MALTESE
VALERIE BRATHWAITE NELSON, JJ.


2014-11216
 (Ind. No. 2615/12)

[*1]The People of the State of New York, respondent,
vEddie . Ghingoree, appellant.


Laurette D. Mulry, Riverhead, NY (Alfred J. Cicale of counsel), for appellant.
Thomas J. Spota, District Attorney, Riverhead, NY (Grazia DiVincenzo of counsel), for respondent.

DECISION & ORDER
Appeal by the defendant from a judgment of the County Court, Suffolk County (Toomey, J.), rendered November 7, 2014, convicting him of criminal possession of a controlled substance in the seventh degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the summary denial of the defendant's motion to withdraw his plea of guilty.
ORDERED that the matter is remitted to the County Court, Suffolk County, for further proceedings on the defendant's motion to withdraw his plea of guilty in accordance herewith, and thereafter a report to this Court limited to the County Court's findings with respect to the motion and whether the defendant has established his entitlement to the withdrawal of his plea, and the appeal is held in abeyance pending receipt of the County Court's report, which shall be filed with all convenient speed.
Only when a motion to withdraw a plea is "patently insufficient on its face" should a court deny the motion without making any inquiry (People v Mitchell, 21 NY3d 964, 967). Here, the defendant's motion was not patently insufficient on its face. The defendant allegedly was misinformed by his former counsel about the risk of deportation arising from a pending immigration case relating to a prior offense, as well as the separate risk of deportation resulting from the subject plea in light of the status of the pending immigration case. The defendant's allegations are not belied by the plea minutes or by former counsel's subsequent explanations to the County Court in support of his motion to be relieved as counsel. Under the circumstances, the court should have afforded the defendant a reasonable opportunity to present his contentions to enable the court to make an informed determination (see People v Tinsley, 35 NY2d 926, 927).
Accordingly, we hold the appeal in abeyance and remit the matter to the County Court, Suffolk County, for further proceedings in accordance with People v Tinsley (35 NY2d 926), followed by a report to this Court setting forth the County Court's findings with respect to the motion and whether the defendant has established his entitlement to the withdrawal of his plea.
CHAMBERS, J.P., HALL, MALTESE and BRATHWAITE NELSON, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


