| People v Melendez |
| 2015 NY Slip Op 07451 [132 AD3d 471] |
| October 13, 2015 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Yoely Melendez, Appellant. |
Seymour W. James, Jr., The Legal Aid Society, New York (Heidi Bota of counsel),for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Natalia Bedoya-McGinn ofcounsel), for respondent.
Judgment, Supreme Court, New York County (Ronald A. Zweibel, J.), renderedJanuary 31, 2013, convicting defendant, upon his plea of guilty, of attempted robbery inthe second degree and sentencing to him to a term of two years, unanimously modified,on the law, to the extent of vacating the sentence, and remitting the matter forresentencing and further proceedings in accordance herewith.
When defendant pleaded guilty, the court did not apprise him that if he was not acitizen, he may be deported as a consequence of his plea. Therefore, "defendant shouldbe afforded the opportunity to move to vacate his plea upon a showing that there is areasonable probability that he would not have pleaded guilty had the court advised himof the possibility of deportation" (People v Fermin, 123 AD3d 465, 466 [1st Dept 2014][internal quotation marks omitted]). Accordingly, the matter is remitted for the remedyset forth in People v Peque,22 NY3d 168, 200-201 [2013], cert denied 574 US &mdash, 135 S Ct 90[2014]). "Since defendant did not know about the possibility of deportation during theplea and sentencing proceedings . . . [his] claim falls within [the] narrowexception to the preservation doctrine" (Peque, 22 NY3d at 183).
Further, the sentencing court's determination as to the applicability of the mitigating[*2]factors set forth in CPL 720.10 (3) was notadequately set forth in the record (see People v Middlebrooks, 25 NY3d 516 [2015]), anddefendant is entitled to a remand for that purpose. Concur—Tom, J.P., Acosta,Richter and Kapnick, JJ.