People v. Tiburcio

Appellate Division of the Supreme Court of New York

People v. Tiburcio

136 A.D.3d 584, 25 N.Y.S.3d 593

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 25, 2016

Docket303 1921N/07

StatusPublished

Cited by2 cases

This text of 136 A.D.3d 584 (People v. Tiburcio) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Tiburcio, 136 A.D.3d 584, 25 N.Y.S.3d 593 (N.Y. Ct. App. 2016).

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Opinion

Judgment, Supreme Court, New York County (Laura A. Ward, J.), rendered March 9, 2009, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the second degree, and sentencing him to a term of three years, unanimously affirmed.

Defendant’s claim that he is entitled to relief under People v Peque (22 NY3d 168 [2013], cert denied 574 US —, 135 S Ct 90 [2014]) based on the absence of warnings, at the time of his plea, regarding the possibility of deportation is unpreserved, and we decline to review it in the interest of justice. Defendant has not established that the exception to the preservation requirement set forth in Peque (id. at 182-183) should apply. Before imposing sentence, the court specifically warned defendant that the conviction could result in deportation, but defendant did not move to withdraw his plea. In any event, given the circumstances of the plea, it is unlikely that defendant could make the requisite showing of prejudice under Peque {id. at 198-201) if granted a hearing.

Concur — Mazzarelli, J.P., Renwick, Manzanet-Daniels and Kapnick, JJ.

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Judgment, Supreme Court, New York County (Laura A. Ward, J.), rendered March 9, 2009, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the second degree, and sentencing him to a term of three years, unanimously affirmed.

Defendant’s claim that he is entitled to relief under People v Peque (22 NY3d 168 [2013], cert denied 574 US —, 135 S Ct 90 [2014]) based on the absence of warnings, at the time of his plea, regarding the possibility of deportation is unpreserved, and we decline to review it in the interest of justice. Defendant has not established that the exception to the preservation requirement set forth in Peque (id. at 182-183) should apply. Before imposing sentence, the court specifically warned defendant that the conviction could result in deportation, but defendant did not move to withdraw his plea. In any event, given the circumstances of the plea, it is unlikely that defendant could make the requisite showing of prejudice under Peque {id. at 198-201) if granted a hearing.

Concur — Mazzarelli, J.P., Renwick, Manzanet-Daniels and Kapnick, JJ.

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Bluebook (online)

136 A.D.3d 584, 25 N.Y.S.3d 593, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-tiburcio-nyappdiv-2016.

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