People v. Lovejoy

136 A.D.3d 513, 24 N.Y.S.3d 902

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 16, 2016
• Docket: 218 1051/97
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Barbara F. Newman, J.), entered on or about June 11, 2014, which denied defendant’s CPL 440.10 motion to vacate a 1999 judgment of conviction, unanimously affirmed.

Defendant’s claim that the court failed to advise him of the immigration consequences of his plea (see People v Peque, 22 NY3d 168 [2013], cert denied 574 US —, 135 S Ct 90 [2014]), is not properly raised in a CPL article 440.10 motion, because that claim would be “clear from the face of the record” (People v Llibre, 125 AD3d 422, 423 [1st Dept 2015], lv denied 26 NY3d 969 [2015]). While the remedy for a Peque error may involve a remand, upon the direct appeal, for fact-finding proceedings (22 NY3d at 200-201), that circumstance does not permit a record-based Peque claim to be raised on a CPL 440.10 motion (Llibre, 125 AD3d at 423).

Even if the statute permitted a record-based Peque claim to be raised in a CPL 440.10 motion, defendant’s claim nonetheless would be unavailing. Although Peque is retroactive to cases pending on direct appeal (People v Brazil, 123 AD3d 466 [1st Dept 2014], lv denied 25 NY3d 1198 [2015]), there is no basis to extend retroactivity to collateral review of convictions that have become final (Llibre, 125 AD3d at 424).

Concur — Tom, J.P., Acosta, Moskowitz and Gische, JJ.