People v. Fermin

Dec 9, 2014
13242 4092/07
Versions:123 A.D.3d 465
998 N.Y.S.2d 180

For the reasons stated in People v Brazil (123 AD3d 466 [2014] [decided herewith]), we find that People v Peque (22 NY3d 168 [2013], cert denied 574 US —, 135 S Ct 90 [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 NY3d at 198).

Accordingly, we remit for the remedy set forth in Peque (22 NY3d at 200-201), and we hold the appeal in abeyance for that purpose (see People v Charles, 117 AD3d 1073 [2d Dept 2014]). Concur—Gonzalez, P.J., Mazzarelli, Andrias, DeGrasse and Clark, JJ.