People v. Barry

2017 NY Slip Op 2879, 149 A.D.3d 494, 52 N.Y.S.3d 323

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 13, 2017
• Docket: 3686 5530/12
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Ronald A. Zweibel, J.), rendered April 11, 2013, convicting defendant, upon his plea of guilty, of attempted robbery in the third degree, and sentencing him to a term of six months, unanimously affirmed.

Defendant has not established that the narrow exception to the preservation requirement applies to his Peque claim (see People v Peque, 22 NY3d 168, 182-183 [2013], cert denied 574 US —, 135 S Ct 90 [2014]). Defendant was informed of his potential deportation by a notice of immigration consequences that the People served upon him, in the presence of his attorney and a suitable interpreter, several months before the guilty plea (see e.g. People v Diakite, 135 AD3d 533 [1st Dept 2016], lv denied 27 NY3d 1131 [2016]), giving defendant the opportunity to raise the issue, and rendering his claim unpreserved. We decline to review his claim in the interest of justice. In any event, we find it highly unlikely, given the terms and circumstances of the plea, that defendant could make the requisite showing of prejudice under Peque (22 NY3d at 198-201) if granted a hearing.

Concur — Friedman, J.P., Richter, Mazzarelli, Feinman and Gische, JJ.