

People v Fernandez (2016 NY Slip Op 06665)





People v Fernandez


2016 NY Slip Op 06665


Decided on October 11, 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 11, 2016

Mazzarelli, J.P., Sweeny, Acosta, Moskowitz, Gesmer, JJ.


129N/06 1866A 55N/12 1866

[*1] The People of the State of New York, Respondent,
vJonathan Fernandez, Defendant-Appellant.


Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Alan Gadlin of counsel), for respondent.

Judgment, Supreme Court, New York County (Laura A. Ward, J. at plea; Richard M. Weinberg, J. at sentencing), rendered March 22, 2012, convicting defendant of criminal possession of a controlled substance in the fourth degree, and sentencing him to a term of one year, unanimously affirmed. Judgment, same court (Richard M. Weinberg, J.), rendered March 22, 2012, convicting defendant, upon his plea of guilty, of bail jumping in the second degree, and sentencing him to a concurrent term of one to three years, unanimously affirmed.
Defendant, who contends that his plea to possession of a controlled substance was involuntary because the plea court in 2006 failed to advise him that he could be deported as a result of his plea (see People v Peque, 22 NY3d 168 [2013], cert denied 574 US __, 135 S Ct 90 [2014]), has not established that the exception set forth to the preservation requirement set forth in Peque (id. at 182-183) should apply, and we decline to review his unpreserved claim in the interest of justice. The record demonstrates that defendant was fully aware of the potential for deportation at a time when judgment on the controlled substance conviction had not yet been entered (see e.g. People v Diakite, 135 AD3d 533 [1st Dept 2016], lv denied 27 NY3d 1131 [2016]). On March 1, 2012, defendant pleaded guilty to bail jumping and received a warning that undisputedly satisfied Peque. Although the court had imposed sentence on the controlled substance conviction just before taking the bail jumping plea, it stayed entry of the controlled substance sentence for several weeks (see CPL 1.20[15]; People v Jian Jing Huang, 1 NY3d 532 [2003]). In any event, "the circumstances of the plea render it highly unlikely that defendant could make the requisite showing of
prejudice under Peque (id. at 198-201) if granted a hearing" (Diakite, 135 AD3d at 533 [internal citations omitted]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: OCTOBER 11, 2016
CLERK


