| People v Fermin |
| 2014 NY Slip Op 08554 [123 AD3d 465] |
| December 9, 2014 |
| Appellate Division, First Department |
[*1](December 9, 2014)
| The People of the State of New York,Respondent, v Cesar Fermin, Appellant. |
Lucas E. Andino, New York, for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Sheila L. Bautista of counsel), forrespondent.
Appeal from judgment, Supreme Court, New York County (Bruce Allen, J.),rendered November 21, 2006, convicting defendant, upon his plea of guilty, of attemptedcriminal possession of a controlled substance in the third degree, and sentencing him to aterm of 60 days, held in abeyance, and the matter remitted for further proceedings inaccordance herewith.
For the reasons stated in People v Brazil (123 AD3d 466 [2014] [decidedherewith]), we find that Peoplev Peque (22 NY3d 168 [2013], cert denied 574 US —, 135 S Ct 90 [2014]) applies retroactively to cases pending on directappeal.
When defendant pleaded guilty, the court did not warn him that if he was not acitizen, 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 showingthat there is a "reasonable probability" that he would not have pleaded guilty had thecourt advised him of the possibility of deportation (Peque, 22 NY3d at 198).
Accordingly, we remit for the remedy set forth in Peque (22 NY3d at200-201), and we hold the appeal in abeyance for that purpose (see People v Charles, 117AD3d 1073 [2d Dept 2014]). Concur—Gonzalez, P.J., Mazzarelli, Andrias,DeGrasse and Clark, JJ.