People v. Diakite

135 A.D.3d 533, 24 N.Y.S.3d 584

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 14, 2016
• Docket: 16658 2624/12
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Ronald A. Zweibel, J.), rendered July 22, 2013, convicting defendant, upon his plea of guilty, of criminal possession of forgery devices (two counts) and scheme to defraud in the first degree, and sentencing him, as a second felony offender, to an aggregate term of 2V2 to 5 years, unanimously affirmed.

Defendant, who contends that his plea was involuntary because the court never advised him that he could be deported as a result of his plea (see People v Peque, 22 NY3d 168 [2013]), has not established that the exception to the preservation requirement set forth in Peque (id. at 182-183) should apply. The record demonstrates that defendant knew of his potential deportation, by virtue of the notice of immigration consequences served upon him and the prosecutor’s application for an increase in bail due to defendant’s prior federal conviction for bank fraud and the fact that he was not a United States citizen. Review of defendant’s unpreserved claim in the interest of justice is unwarranted, because the circumstances of the plea render it highly unlikely that defendant could make the requisite showing of prejudice under Peque (id. at 198-201) if granted a hearing.

We perceive no basis for reducing the sentence. Concur— Tom, J.R, Sweeny, Richter and Manzanet-Daniels, JJ.