People v. Pastor

136 A.D.3d 493, 25 N.Y.S.3d 160

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 11, 2016
• Docket: 16650 2542/11
• Status: Published

Opinions

Judgment, Supreme Court, Bronx County (Denis J. Boyle, J.), rendered October 5, 2011, convicting defendant, upon his plea of guilty, of assault in the second degree, and sentencing him to a term of nine months, affirmed.

Defendant’s challenges to his plea are unpreserved, and they do not come within the narrow exception to the preservation requirement (see People v Conceicao, 26 NY3d 375 [2015]; People v Peque, 22 NY3d 168, 183 [2013], cert denied sub nom. Thomas v New York, 574 US —, 135 S Ct 90 [2014]). We decline to review these claims in the interest of justice. As an alternate holding, we find no basis for reversal.

Defendant argues that his guilty plea was not knowingly, intelligently and voluntarily made because the trial court failed to ask him about a possible justification defense. Defendant argues that at sentencing, the court noted it had read the presentence report, and the court should have advised defendant about a possible justification defense. However, during the plea allocution itself, defendant said nothing that negated any element of the crime (see People v Toxey, 86 NY2d 725 [1995]), or raised the defense of justification. In the absence of a motion to withdraw the plea, the court had no obligation to conduct a sua sponte inquiry into a statement by defendant, reflected in the presentence report, that alluded to a possible justification defense (see e.g. People v Praileau, 110 AD3d 415 [1st Dept 2013], lv denied 22 NY3d 1202 [2014]).

Defendant further claims his plea was not knowingly, intelligently and voluntarily made because he was misadvised about potential immigration consequences of his plea. During the allocution, the court stated, “Now under the law, I have the responsibility to tell you if you are not a citizen, you may face deportation or denial of your naturalization given this plea today; is that understood?” Defendant replied yes. Defense counsel then said, “Judge, I want to put on the record that although I fully discussed the consequences of this plea with my client, although it is not relevant to this case [sic].” Here, as required, the court correctly notified defendant that if he was not a United States citizen, he may be deported upon a guilty plea (see Peque, 22 NY3d at 196-197). The court assured itself that defendant knew of the possibility of deportation prior to entering the guilty plea, and therefore the plea was knowing, intelligent and voluntary {id. at 176, 196-197). Additionally, counsel stated that he had fully discussed the consequences of the plea with defendant.

The dissent focuses on the portion of defense counsel’s statement, which was made following the court’s immigration warning, that “it is not relevant to this case,” and argues the court should have “rectified” the misstatement. However, nothing in the record shows this was a misstatement. Defendant was not here legally, and counsel’s statement could have been based on the fact that defendant was subject to removal for other reasons, which would have made the deportation consequences of this plea irrevelant. It also is possible counsel made this statement because defendant was prepared to plead guilty despite any potential immigration consequences of this plea. In any event, on this record, we do not know exactly what counsel was thinking, but it is not correct to characterize this as incorrect legal advice. Peque does not require that the court ascertain more information about counsel’s discussions with defendant. Rather, it mandates that the court give defendant the appropriate warning.

The dissent cites People v Belliard (135 AD3d 437 [2016]) to show that the trial court’s failure to clarify defense counsel’s statement amounted to a Peque violation. In Belliard however, the trial court did not apprise defendant that, if he was not a United States citizen, he could be deported as a consequence upon his guilty plea. Here, the court gave the correct warning and satisfied Peque (Peque at 176, 196-197).

Finally, defendant in his appellate brief expressly states he is seeking only vacatur of the plea and dismissal of the indictment, and not a remand. Yet, despite this statement, the dissent would order a hearing before the trial court. We note vacatur of the plea and dismissal of the indictment is not a remedy available to defendant because no Peque violation appears on the record and he has not established prejudice as a matter of law. To the extent that defendant is suggesting his attorney gave him misadvice, his remedy, if any, is to file a CPL 440.10 motion.

Concur — Tom, J.P., Sweeny and Richter, JJ.