People v. Henriquez , 145 A.D.3d 543 ( 2016 )

People v Henriquez (2016 NY Slip Op 08435)

People v Henriquez

2016 NY Slip Op 08435

Decided on December 15, 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 December 15, 2016
Mazzarelli, J.P., Sweeny, Renwick, Manzanet-Daniels, JJ.

15741 1581/09

[*1] The People of the State of New York, Respondent,

v

Hebert Henriquez, also known as Herbert Henriquez, Defendant-Appellant.

Richard M. Greenberg, Office of the Appellate Defender, New York (Eunice C. Lee of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Jessica Olive of counsel), for respondent.

Appeal from judgment, Supreme Court, New York County (Charles H. Solomon, J.), rendered April 20, 2010, convicting defendant, upon his plea of guilty, of grand larceny in the second and third degrees, and sentencing him, as a second felony offender, to an aggregate term of four to eight years, further held in abeyance, and the matter remanded for further proceedings in accordance herewith.

We previously held this appeal in abeyance (131 AD3d 902 [1st Dept 2015]) after finding that a disposition under People v Saunders (52 AD2d 833 [1976]) would be inappropriate. Upon consideration of the additional briefs filed by the parties, we now conclude that 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 that his plea would lead to deportation (People v Peque, 22 NY3d 168, 198 [2013], 574 US __, 135 S. Ct. 90 [2014]). We have considered and rejected the People's preservation arguments. Accordingly, we remand 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: DECEMBER 15, 2016

CLERK