| People v Corporan |
| 2016 NY Slip Op 00104 [135 AD3d 485] |
| January 12, 2016 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Giovanni Corporan, Also Known as Angel Santiago,Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno ofcounsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Alexander Michaels of counsel),for respondent.
Appeal from judgments, Supreme Court, New York County (Laura A. Ward, J.),rendered November 14, 2012, convicting defendant, upon his pleas of guilty, ofattempted criminal possession of a controlled substance in the third degree and criminalpossession of a controlled substance in the third degree, and sentencing him toconcurrent terms of 5
As the People concede, the court failed to warn defendant of the potential fordeportation during the 2002 plea proceeding (see People v Peque, 22 NY3d 168, 176 [2013], certdenied 574 US &mdash, 135 S Ct 90 [2014]). At the 2005 plea proceeding, whichaddressed the 2002 and 2005 cases after defendant had absconded before the scheduledsentencing on his 2002 conviction, the court did raise the issue of deportation. However,defendant was deprived of effective assistance when his counsel undermined the court'swarning and understated the potential for deportation by remarking that the plea would"not necessarily" result in deportation, and that defendant only "might be deported" (see People v Hemans, 132AD3d 428 [1st Dept 2015]). In fact, it was clear that defendant's plea of guilty to anaggravated felony triggered mandatory deportation under federal law (see 8 USC§ 1227 [a] [2] [A] [iii]).
Defendant should be afforded the opportunity to move to vacate his plea upon ashowing that there is a "reasonable probability" that he would not have pleaded guiltyhad he been made aware of the deportation consequences of his plea (see Peque,22 NY3d at 199-200; see alsoPeople v Chacko, 99 AD3d 527 [1st Dept 2012], lv denied 20 NY3d1060 [2013]). Accordingly, we remit for the remedy set forth in Peque (22 NY3dat 200-201), and hold the appeal in abeyance for that purpose.
We have considered and rejected the People's arguments that defendant was requiredto preserve his claims concerning potential deportation, that the ineffective assistanceclaim is unreviewable, and that defendant's claims are barred by his misconduct inabsconding. We also [*2]reject defendant's claim that heis entitled to outright reversal of the judgment on a separate ground of involuntariness.Although defendant received erroneous information as to his potential sentence in theevent he violated the conditions of the plea agreement, this reference to a sentencegreater than the maximum legally permissible term could not have "induced" him toplead guilty (People vMonroe, 21 NY3d 875, 878 [2013]). Concur—Renwick, J.P., Andrias,Saxe, Moskowitz, JJ.