PEOPLE v. DE LOS SANTOS (2018)

Appeal from judgment, Supreme Court, New York County (Laura A. Ward, J.), rendered June 12, 2017, convicting defendant, upon his plea of guilty, of attempted robbery in the third degree, and sentencing him, as a second felony offender, to a term of 11/212 to 3 years, held in abeyance, and the matter remitted for further proceedings in accordance herewith.

During the plea proceeding, the court asked defense counsel, “I'm assuming based on his criminal history there we have no immigration issues?” to which counsel stated that he “discussed all of the immigration consequences, and he is well aware of all of the consequences that may result from this.”  The court thus failed to 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 sub nom. Thomas v. New York, 574 U.S. ––––, 135 S.Ct. 90, 190 L.Ed.2d 75 [2014].  The People do not dispute that there was a Peque defect, and that preservation is not required here.  However, their claim that the absence of prejudice may be determined on the present record is unavailing.  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, 3 N.E.3d 617, and we hold the appeal in abeyance for that purpose.