People v Barry

People v Barry 2017 NY Slip Op 02879 Decided on April 13, 2017 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 13, 2017
Friedman, J.P., Richter, Mazzarelli, Feinman, Gische, JJ.
3686 5530/12

[*1]The People of the State of New York, Respondent,

v

Hamadou Barry, Defendant-Appellant.

Seymour W. James, Jr., The Legal Aid Society, New York (Arthur H. Hopkirk of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Jared Wolkowitz of counsel), for respondent.

Judgment, Supreme Court, New York County (Ronald A. Zweibel, J.), rendered April 11, 2013, convicting defendant, upon his plea of guilty, of attempted robbery in the third degree, and sentencing him to a term of six months, unanimously affirmed.

Defendant has not established that the narrow exception to the preservation requirement applies to his Peque claim (see People v Peque, 22 NY3d 168, 182-183 [2013], cert denied 574 US __, 135 S Ct 90 [2014]). Defendant was informed of his potential deportation by a notice of immigration consequences that the People served upon him, in the presence of his attorney and a suitable interpreter, several months before the guilty plea (see e.g. People v Diakite, 135 AD3d 533 [1st Dept 2016], lv denied 27 NY3d 1131 [2016]), giving defendant the opportunity to raise the issue, and rendering his claim unpreserved. We decline to review his claim in the interest of justice. In any event, we find it highly unlikely, given the terms and circumstances of the plea, that defendant could make the requisite showing of prejudice under Peque (22 NY3d 198-201) if granted a hearing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 13, 2017

CLERK