| People v Belliard |
| 2016 NY Slip Op 00033 |
| Decided on January 7, 2016 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on January 7, 2016
Acosta, J.P., Andrias, Manzanet-Daniels, Kapnick, JJ.
16551 2309/12
v
Christopher Belliard, Defendant-Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Clara Salzberg of counsel), for respondent.
Appeal from judgment, Supreme Court, Bronx County (William I. Mogulescu, J. at plea; George R. Villegas, J. at sentencing), rendered March 1, 2013, convicting defendant of robbery in the third degree, and sentencing him to a term of 1½ to 4½ years, held in abeyance, and the matter remitted for further proceedings in accordance herewith.
During the plea proceeding, the court asked defense counsel if he had discussed with defendant the "immigration consequences of this guilty plea." Defense counsel replied, "Yes. It's not applicable in this case." Despite an additional reference to "immigration consequences," the court did not 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 NY3d 168 [2013], cert denied __ US __, 135 S. Ct. 90 [2014], which applies to cases on direct appeal (People v Brazil, 123 AD3d 466 [1st Dept 2014], lv denied 25 NY3d 1198 [2015]). 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 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.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 7, 2016
CLERK