Opinion
12-15-2016
The PEOPLE of the State of New York, Respondent, v. Hebert HENRIQUEZ, also known as Herbert Henriquez, Defendant–Appellant.
Richard M. Greenberg, Office of the Appellate Defender, New York (Eunice C. Lee of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Jessica Olive of counsel), for respondent.
Richard M. Greenberg, Office of the Appellate Defender, New York (Eunice C. Lee of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Jessica Olive of counsel), for respondent.
Appeal from judgment, Supreme Court, New York County (Charles H. Solomon, J.), rendered April 20, 2010, convicting defendant, upon his plea of guilty, of grand larceny in the second and third degrees, and sentencing him, as a second felony offender, to an aggregate term of four to eight years, further held in abeyance, and the matter remanded for further proceedings in accordance herewith. We previously held this appeal in abeyance (131 A.D.3d 902, 16 N.Y.S.3d 726 [1st Dept.2015] ) after finding that a disposition under People v. Saunders, 52 A.D.2d 833, 384 N.Y.S.2d 161 (1976) would be inappropriate. Upon consideration of the additional briefs filed by the parties, we now conclude that 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 that his plea would lead to deportation (People v. Peque, 22 N.Y.3d 168, 198, 980 N.Y.S.2d 280, 3 N.E.3d 617 [2013], 574 U.S. ––––, 135 S.Ct. 90, 190 L.Ed.2d 75 [2014] ). We have considered and rejected the People's preservation arguments. Accordingly, we remand for the remedy set forth in Peque, 22 N.Y.3d at 200–201, 980 N.Y.S.2d 280, 3 N.E.3d 617, and we hold the appeal in abeyance for that purpose.
MAZZARELLI, J.P., SWEENY, RENWICK, MANZANET–DANIELS, JJ., concur.