Opinion
13314, 6788N/05
12-09-2014
The PEOPLE of the State of New York, Respondent, v. Cesar FERMIN, Defendant–Appellant.
Lucas E. Andino, New York, for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Sheila L. Bautista of counsel), for respondent.
Lucas E. Andino, New York, for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Sheila L. Bautista of counsel), for respondent.
GONZALEZ, P.J., MAZZARELLI, ANDRIAS, DeGRASSE, CLARK, JJ.
Opinion Appeal from judgment, Supreme Court, New York County (Bruce Allen, J.), rendered November 21, 2006, convicting defendant, upon his plea of guilty, of attempted criminal possession of a controlled substance in the third degree, and sentencing him to a term of 60 days, held in abeyance, and the matter remitted for further proceedings in accordance herewith.
For the reasons stated in People v. Brazil, 123 A.D.3d 466, 998 N.Y.S.2d 181 Appeal No. 12461 [decided herewith], we find that People
v. Peque, 22 N.Y.3d 168, 980 N.Y.S.2d 280, 3 N.E.3d 617 (2013), cert. denied ––– U.S. ––––, 135 S.Ct. 90, 190 L.Ed.2d 75 (2014) applies retroactively to cases pending on direct appeal.
When defendant pleaded guilty, the court did not warn him that if he was not a citizen, he could be deported as a result of his plea. Therefore, under Peque, defendant should be afforded 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 (Peque, 22 N.Y.3d at 198, 980 N.Y.S.2d 280 ).
Accordingly, we remit for the remedy set forth in Peque , 22 N.Y.3d at 200–201, 980 N.Y.S.2d 280, and we hold the appeal in abeyance for that purpose (see People v. Charles, 117 A.D.3d 1073, 986 N.Y.S.2d 228 [2d Dept.2014] ).