           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

995
KA 10-00808
PRESENT: SCUDDER, P.J., SMITH, LINDLEY, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

JUAN C. MEDINA, DEFENDANT-APPELLANT.


CHARLES J. GREENBERG, AMHERST, FOR DEFENDANT-APPELLANT.

CINDY F. INTSCHERT, DISTRICT ATTORNEY, WATERTOWN (NICOLE L. KYLE OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Jefferson County Court (Kim H.
Martusewicz, J.), rendered March 15, 2010. The judgment convicted
defendant, upon his plea of guilty, of attempted promoting prison
contraband in the first degree.

     It is hereby ORDERED that the case is held, the decision is
reserved and the matter is remitted to Jefferson County Court for
further proceedings in accordance with the following memorandum:
Defendant appeals from a judgment convicting him, upon his plea of
guilty, of attempted promoting prison contraband in the first degree
(Penal Law §§ 110.00, 205.25 [2]). The record of the plea proceeding
establishes that County Court failed to apprise defendant, a
noncitizen, that deportation was a potential consequence of his guilty
plea. As defendant contends and the People correctly concede, the
case should be remitted 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 the court
advised him of the possibility of deportation” (People v Fermin, 123
AD3d 465, 466, quoting People v Peque, 22 NY3d 168, 198). We
therefore hold the case, reserve decision, and remit the matter to
County Court for that purpose. Defendant further contends that
counsel was ineffective in failing to inform him that deportation was
a potential consequence of the plea (see Padilla v Kentucky, 559 US
356). Inasmuch as that contention is based upon matters outside the
record, it must be raised in a motion pursuant to CPL 440.10 (see
People v Drammeh, 100 AD3d 650, 651, lv denied 20 NY3d 1098).




Entered:    October 9, 2015                        Frances E. Cafarell
                                                   Clerk of the Court
