

People v Jimenez (2017 NY Slip Op 03460)





People v Jimenez


2017 NY Slip Op 03460


Decided on May 2, 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 May 2, 2017

Acosta, J.P., Mazzarelli, Manzanet-Daniels, Webber, JJ.


3880 549/14

[*1]The People of the State of New York, Respondent,
vRosa Jimenez, Defendant-Appellant.


Seymour W. James, Jr., The Legal Aid Society, New York (Harold V. Ferguson, Jr. of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Oliver McDonald of counsel), for respondent.

Judgment, Supreme Court, New York County (Daniel P. FitzGerald, J. at plea; Marcy L. Kahn, J. at sentencing), rendered May 13, 2015, convicting defendant of criminal possession of a controlled substance in the fifth degree, and sentencing her to three years' probation, unanimously affirmed.
Defendant's contention that the plea court failed to advise her of the true immigration consequences of her plea is unpreserved (see People v Peque (22 NY3d 168, 182-183 [2013], cert denied 574 US __, 135 S Ct 90 [2014]), and we decline to review it in the interest of justice. As an alternative holding, we find that the court met its obligation under Peque (see id. at 196-197) by warning defendant that there was "a good likelihood" that she "could" be deported, since Peque does not "require a plea court to ascertain whether a particular conviction carries mandatory deportation under federal law and advise a defendant accordingly" (People v Manuel, 143 AD3d 473, 474 [1st Dept 2016], lv denied 28 NY3d 1147 [2017]). In any event, even where deportation is legally mandatory, as a practical matter it still requires the immigration authorities to take the necessary actions, and thus the deportation consequences of defendant's plea could fairly be characterized as likely rather than absolutely certain.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MAY 2, 2017
CLERK


