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In Belliard, we remitted the matter for a hearing to determine whether a Peque warning would have influenced the defendant's decision whether to plead guilty or stand trial (see 22 N.Y.3d at 176, 198, 980 N.Y.S.2d 280, 3 N.E.3d 617) because defense counsel—not the defendant himself—told the court, inaccurately, that advice about the possible immigration consequences of the plea was " ‘not applicable in this case’ " (135 A.D.3d at 438, 22 N.Y.S.3d 425).
Summary of this case from People v. PalmerOpinion
01-07-2016
The PEOPLE of the State of New York, Respondent, v. Christopher BELLIARD, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Clara Salzberg of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Clara Salzberg of counsel), for respondent.
ACOSTA, J.P., ANDRIAS, MANZANET–DANIELS, KAPNICK, JJ.
Appeal from judgment, Supreme Court, Bronx County (William I. Mogulescu, J. at plea; George R. Villegas, J. at sentencing), rendered March 1, 2013, convicting defendant of robbery in the third degree, and sentencing him to a term of 1 ½ to 4 ½ years, held in abeyance, and the matter remitted for further proceedings in accordance herewith.
During the plea proceeding, the court asked defense counsel if he had discussed with defendant the "immigration consequences of this guilty plea." Defense counsel replied, "Yes. It's not applicable in this case." Despite an additional reference to "immigration consequences," the court did not advise defendant that if he was not a United States citizen, he could be deported as a result of his plea, as required under 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], which applies to cases on direct appeal (People v. Brazil, 123 A.D.3d 466, 998 N.Y.S.2d 181 [1st Dept.2014], lv. denied 25 N.Y.3d 1198, 16 N.Y.S.3d 521, 37 N.E.3d 1164 [2015] ). Therefore, 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, 3 N.E.3d 617 ).
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.