The People of the State of New York, Respondent,

v

Marcos Gonzalez, Appellant.

Alexis Pimentel, Esq., for appellant. Suffolk County District Attorney (Grazia Divincenzo, Esq.), for respondent.

Appeal from a judgment of the District Court of Suffolk County, First District (Jennifer A. Henry, J.), rendered August 6, 2014. The judgment convicted defendant, upon his plea of guilty, of assault in the third degree. By decision and order of this court dated January 24, 2017, the appeal was held in abeyance and the matter was remitted to the District Court to afford defendant the opportunity to move to vacate his plea of guilty in accordance therewith, and for a report on any such motion (People v Gonzalez, 54 Misc 3d 139[A], 2017 NY Slip Op 50152[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2017]). The District Court (Richard T. Dunne, J.) has filed its report.

ORDERED that the judgment of conviction is affirmed.

When this appeal was initially heard, the sole argument raised by defendant, a citizen of El Salvador, was that he had pleaded guilty to assault in the third degree (Penal Law § 120.00 [1]) as part of a negotiated plea and sentencing agreement, pursuant to which a felony complaint had been reduced, and that the record is devoid of any advisements by the court or defendant's counsel that the conviction would subject defendant to deportation (see 8 USC § 1227 [a] [2] [a] [i]; Guevara v Holder, 533 Fed Appx 23, 26-27 [2d Cir 2013]; Mustafaj v Holder, 369 Fed Appx 163, 166 [2d Cir 2010]; In Re Solon, 24 I & N Dec. 239 [BIA 2007]). This court held the appeal in abeyance and remitted the matter to the District Court to afford defendant an [*2]opportunity to move to vacate his plea and to establish that he would have proceeded to trial had he been aware of those consequences, and for the District Court to report its determinations of facts and law (54 Misc 3d 139[A], 2017 NY Slip Op 50152[U]).

Upon remittitur, defendant's counsel, having moved to vacate defendant's plea, stated that defendant had already been deported on grounds unrelated to the present proceeding,^[FN1] and that he was unable to obtain defendant's presence or even a supporting affidavit from defendant. As it was defendant's burden to establish 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 Agramonte, 148 AD3d 923, 923 [2017], quoting People v Peque, 22 NY3d 168, 176 [2013]; see e.g. People v Singh, 147 AD3d 979, 980-981 [2017]; People v Odle, 134 AD3d 1132, 1133 [2015]), the District Court (Richard T. Dunne, J.) properly determined that defendant had failed to satisfy his burden of proof (cf. People v Bennett, 139 AD3d 1350, 1351 [2016]).

Accordingly, the judgment of conviction is affirmed.

MARANO, P.J., GARGUILO and RUDERMAN, JJ., concur.

ENTER:

Paul Kenny

Chief Clerk

Decision Date: December 28, 2017