People v. Fernandez

2016 NY Slip Op 6665, 143 A.D.3d 505, 39 N.Y.S.3d 419

Opinion

Judgment, Supreme Court, New York County (Laura A. Ward, J., at plea; Richard M. Weinberg, J., at sentencing), rendered March 22, 2012, convicting defendant of criminal possession of a controlled substance in the fourth degree, and sentencing him to a term of one year, unanimously affirmed. Judgment, same court (Richard M. Weinberg, J.), rendered March 22, 2012, convicting defendant, upon his plea of guilty, of bail jumping in the second degree, and sentencing him to a concurrent term of one to three years, unanimously affirmed.

Defendant, who contends that his plea to possession of a controlled substance was involuntary because the plea court in 2006 failed to advise him that he could be deported as a result of his plea (see People v Peque, 22 NY3d 168 [2013], cert denied 574 US —, 135 S Ct 90 [2014]), has not established that the exception set forth to the preservation requirement set forth in Peque (id. at 182-183) should apply, and we decline to review his unpreserved claim in the interest of justice. The record demonstrates that defendant was fully aware of the potential for deportation at a time when judgment on the controlled substance conviction had not yet been entered (see e.g. People v Diakite, 135 AD3d 533 [1st Dept 2016], lv denied 27 NY3d 1131 [2016]). On March 1, 2012, defendant pleaded guilty to bail jumping and received a warning that undisputedly satisfied Peque. Although the court had imposed sentence on the controlled substance conviction just before taking the bail jumping plea, it stayed entry of the controlled substance sentence for several weeks (see CPL 1.20 [15]; People v Jian Jing Huang, 1 NY3d 532 [2003]). In any event, “the circumstances of the plea render it highly unlikely that defendant could make the requisite showing of prejudice under Peque if granted a hearing” (Diakite, 135 AD3d at 533 [citation omitted]).

Concur — Mazzarelli, J.R, Sweeny, Acosta, Moskowitz and Gesmer, JJ.