People v. Tiburcio ( 2016 )

People v Tiburcio (2016 NY Slip Op 01389)

People v Tiburcio

2016 NY Slip Op 01389

Decided on February 25, 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 February 25, 2016
Mazzarelli, J.P., Renwick, Manzanet-Daniels, Kapnick, JJ.

303 1921N/07

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

v

Jose Tiburcio, Defendant-Appellant.

Seymour W. James, Jr., The Legal Aid Society, New York (Heidi Bota 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 (Laura A. Ward, J. 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 &mdash, 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.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 25, 2016

CLERK