People v. Pequero

Feb 1, 2018
5586 362N/14
Versions:158 A.D.3d 421
67 N.Y.S.3d 813
2018 NY Slip Op 00619
2018 NY Slip Op 619

Renwick, J.P., Richter, Tom, Gesmer, Oing, JJ.

Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Samuel Z. Goldfine of counsel), for respondent.

Appeal from judgment, Supreme Court, New York County (Neil E. Ross, J. at plea; Richard M. Weinberg, J. at sentencing), rendered May 1, 2015, convicting defendant of criminal possession of a controlled substance in the fifth degree, and sentencing him to a term of six months, held in abeyance, and the matter remanded for further proceedings in accordance herewith.

Defendant was deprived of effective assistance when his counsel advised him that his plea would have “potential immigration consequences,” where it is clear that his drug-related conviction would trigger mandatory deportation under 8 USC § 1227(a)(2)(B)(I) (see Padilla v Kentucky, 559 US 356, 368-369 [2010]; People v Doumbia, 153 AD3d 1139 [1st Dept 2017]; People v Corporan, 135 AD3d 485 [1st Dept 2016]). The remarks made by counsel on the record are sufficient to permit review on direct appeal (see Doumbia, 153 AD3d at 1139). Thus, we hold this matter in abeyance to afford defendant 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 he been made aware of the deportation consequences of his plea.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 1, 2018

CLERK