Opinion
10-13-2015
The PEOPLE of the State of New York, Respondent, v. Yoely MELENDEZ, Defendant–Appellant.
Seymour W. James, Jr., The Legal Aid Society, New York (Heidi Bota of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Natalia Bedoya–McGinn of counsel), for respondent.
Seymour W. James, Jr., The Legal Aid Society, New York (Heidi Bota of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Natalia Bedoya–McGinn of counsel), for respondent.
TOM, J.P., ACOSTA, RICHTER, KAPNICK, JJ.
Opinion
Judgment, Supreme Court, New York County (Ronald A. Zweibel, J.), rendered January 31, 2013, convicting defendant, upon his plea of guilty, of attempted robbery in the second degree and sentencing to him to a term of two years, unanimously modified, on the law, to the extent of vacating the sentence, and remitting the matter for resentencing and further proceedings in accordance herewith.
When defendant pleaded guilty, the court did not apprise him that if he was not a citizen, he may be deported as a consequence of his plea. 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” (People v. Fermin, 123 A.D.3d 465, 466, 998 N.Y.S.2d 180 [1st Dept.2014] [internal quotation marks omitted] ). Accordingly, the matter is remitted for the remedy set forth in (People v. Peque, 22 N.Y.3d 168, 200–201, 980 N.Y.S.2d 280, 3 N.E.3d 617 [2013], cert. denied 574 U.S. ––––, 135 S.Ct. 90, 190 L.Ed.2d 75 [2014] ). “Since defendant did not know about the possibility of deportation during the plea and sentencing proceedings ... [his] claim falls within [the] narrow exception to the preservation doctrine” (Peque, 22 N.Y.3d at 183, 980 N.Y.S.2d 280, 3 N.E.3d 617 ).
Further, the sentencing court's determination as to the applicability of the mitigating factors set forth in CPL 720.10(3) was not adequately set forth in the record (see People v. Middlebrooks, 25 N.Y.3d 516, 14 N.Y.S.3d 296, 35 N.E.3d 464 [2015] ), and defendant is entitled to a remand for that purpose.