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People v. Bermudez

Supreme Court, Appellate Division, First Department, New York.
Oct 3, 2017
154 A.D.3d 410 (N.Y. App. Div. 2017)

Opinion

4552, 3326/11.

10-03-2017

The PEOPLE of the State of New York, Respondent, v. Jose BERMUDEZ, Defendant–Appellant.

Robert S. Dean, Center for Appellate Litigation, New York (Arielle Reid of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Paul A. Andersen of counsel), for respondent.


Robert S. Dean, Center for Appellate Litigation, New York (Arielle Reid of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Paul A. Andersen of counsel), for respondent.

SWEENY, J.P., MOSKOWITZ, KAHN, GESMER, JJ.

Appeal from judgment, Supreme Court, Bronx County (Patricia DiMango, J.), rendered August 6, 2013, convicting defendant, upon his plea of guilty, of robbery in the second degree, and sentencing him to a term of 3 ½ years, held in abeyance, and the matter remitted for further proceedings in accordance herewith.During the plea proceeding, the court asked defendant whether he was a United States citizen, and defendant answered "No." Rather than advising 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 sub. nom. Thomas v. New York, 574 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] ), the court asked defendant, "You are not a U.S. citizen?" to which defendant answered, "Oh yeah, yeah." Given the phrasing of the question in the negative, the response could be interpreted as asserting either citizenship or noncitizenship. The court did not inquire further into defendant's answers or advise him of the immigration consequences of his plea, and the record is devoid of any indication that defendant was otherwise aware, such as through defense counsel, of those consequences. Nor does this exchange, in the context of the plea allocution, suggest that defendant affirmatively misrepresented his immigration status, as he accurately answered the court's question (compare Brazil, 123 A.D.3d at 467, 998 N.Y.S.2d 181 ). Thus, his responses, even if contradictory, did not absolve the court of the obligation to state briefly that the guilty plea could render defendant deportable.

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 ; see People v. Belliard, 135 A.D.3d 437, 438, 22 N.Y.S.3d 425 [1st Dept.2016] ). Accordingly, we remit 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.


Summaries of

People v. Bermudez

Supreme Court, Appellate Division, First Department, New York.
Oct 3, 2017
154 A.D.3d 410 (N.Y. App. Div. 2017)
Case details for

People v. Bermudez

Case Details

Full title:The PEOPLE of the State of New York, Respondent, v. Jose BERMUDEZ…

Court:Supreme Court, Appellate Division, First Department, New York.

Date published: Oct 3, 2017

Citations

154 A.D.3d 410 (N.Y. App. Div. 2017)
62 N.Y.S.3d 57
2017 N.Y. Slip Op. 6888