| People v Manon |
| 2014 NY Slip Op 08556 [123 AD3d 467] |
| December 9, 2014 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Marcos Manon, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Katharine Skolnick ofcounsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Frank Glaser of counsel), forrespondent.
Appeal from judgment, Supreme Court, New York County (Renee A. White, J., atplea; Ronald A. Zweibel, J., at sentencing), rendered July 23, 2009, convictingdefendant, upon his plea of guilty, of criminal sale of a controlled substance in the fifthdegree, and sentencing him, as a second felony drug offender, to a term of1
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 &mdash, 135 SCt 90 [2014]) applies retroactively to cases, such as this one, 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. However, the sentencing minutes aremissing. A reconstruction hearing is therefore required, so that the court can determinewhether defendant was aware of the immigration consequences and thus required topreserve his claim that his plea was unknowing and involuntary, and whether, if so, hedid preserve his claim, or, whether his claim falls within the narrow exception to thepreservation doctrine where a defendant has no practical ability to object to an error in aplea allocution because he cannot "be expected to move to withdraw his plea on a groundof which he has no knowledge" (Peque, 22 NY3d at 182 [internal quotationmarks omitted]). If the claim is preserved, or falls into the narrow exception to thepreservation doctrine, defendant should be afforded the opportunity to move to vacate hisplea upon a showing that there is a "reasonable probability" that he would not havepleaded guilty had the court advised him of the possibility of deportation (Peque,22 NY3d at 198).
Accordingly, we remit for purposes of a reconstruction hearing as well as the remedyset forth in Peque (22 NY3d at 200-201) if such remedy is available. We hold theappeal in [*2]abeyance for those purposes (see People v Charles, 117AD3d 1073 [2d Dept 2014]). Concur—Mazzarelli, J.P., Acosta, DeGrasseand Manzanet-Daniels, JJ.