THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. GARTH BENNETT DEFENDANT APPELLANT

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Supreme Court, Appellate Division, Fourth Department.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. GARTH O. BENNETT, DEFENDANT–APPELLANT.

KA 12–02016

Decided: May 06, 2016

PRESENT:  WHALEN, P.J., PERADOTTO, LINDLEY, NEMOYER, AND SCUDDER, JJ. MARK D. FUNK, ROCHESTER, FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

Appeal, by permission of a Justice of the Appellate Division of the Supreme Court in the Fourth Judicial Department, from an order of the Supreme Court, Monroe County (Francis A. Affronti, J.), dated March 7, 2012.  The order denied the motion of defendant to vacate a judgment of conviction pursuant to CPL 440.10.

We therefore reverse the order and remit the matter to Supreme Court for a hearing on the motion, i.e., to determine whether, as defendant has alleged, defense counsel assured him that he would not be deported as a result of his plea, and, if so, whether there is a reasonable probability that defendant would not have pleaded guilty if he had been properly advised of the deportation consequences.

Finally, we note that the People have not moved to dismiss the appeal on the ground that defendant has been deported and, although we have discretion to dismiss a permissive appeal in these circumstances (see People v. Harrison, _ NY3d _, _ [May 5, 2016] ), we decline to exercise our discretion to do so.

Frances E. Cafarell

Clerk of the Court