People v Casimay

People v Casimay 2016 NY Slip Op 06895 Decided on October 20, 2016 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 October 20, 2016
Sweeny, J.P., Renwick, Manzanet-Daniels, Gische, Webber, JJ.
1999 2618/12

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

v

Angel Casimay, Defendant-Appellant.

Seymour W. James, Jr., The Legal Aid Society, New York (Kristina Schwarz of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Patrick J. Hynes of counsel), for respondent.

Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered February 7, 2013, convicting defendant, upon his plea of guilty, of attempted burglary in the second degree, and sentencing him, as a second felony offender, to a term of three years, unanimously affirmed.

Defendant, who contends that his plea was involuntary because the court did not specifically advise him that he could be deported as a result of the plea, did not show that the narrow exception to the preservation requirement applies (see People v Peque, 22 NY3d 168, 182-183 [2013], cert denied 574 US __, 135 S Ct 90 [2014]). Defendant was informed, by way of a notice of immigration consequences served upon him by the People, that he could potentially be deported. We decline to reach defendant's unpreserved contention in the interest of justice because, given the circumstances of the plea, it is unlikely that he could make the requisite showing of prejudice under Peque if granted a hearing (see id. at 198-201; People v Diakite, 135 AD3d 533 [1st Dept 2016], lv denied 27 NY3d 1131 [2016]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 20, 2016

CLERK