

People v Brazil (2014 NY Slip Op 08555)





People v Brazil


2014 NY Slip Op 08555


Decided on December 9, 2014


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 December 9, 2014

Sweeny, J.P., Renwick, Saxe, Richter, JJ.


12461 2159N/09

[*1] The People of the State of New York, Respondent,
vRobert Brazil, etc., 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 (Patrick J. Hynes of counsel), for respondent.

Judgment, Supreme Court, New York County (Robert M. Stoltz, J.), rendered March 9, 2011, convicting defendant, upon his plea of guilty, of criminal sale of a controlled substance in the fifth degree, and sentencing him, as a second felony drug offender previously convicted of a violent felony, to a term of 2½ years, unanimously affirmed.
Defendant claims that his plea was involuntary because the court did not advise him that if he was not a United States citizen, he could be deported as a result of his plea, as required under People v Peque (22 NY3d 168 [2013], cert denied __ US __, 135 S Ct 90 [2014]). The People argue that Peque is a new rule within the meaning of People v Pepper (53 NY2d 213 [1981], cert denied 454 US 967 [1981]), and therefore should apply prospectively only, and not to cases that were on direct appeal when Peque was decided. Contrary to the People's contention, we find that Peque is a rule of federal constitutional law. Peque was primarily based on federal constitutional principles. Indeed, Peque relied mainly on federal case law and state authorities grounded in federal constitutional principles (see People v Harnett, 16 NY3d 200, 206 [2011]; People v Gravino, 14 NY3d 546, 553-554 [2010]). Any new rule of criminal procedure mandated by the federal constitution must apply to the cases still on direct appeal (People v Martello, 93 NY2d 645, 650 [1999] citing Griffith v Kentucky, 479 US 314 [1987]). Accordingly, Peque is applicable to this case, since it is on direct appeal (Griffith v Kentucky, 479 US 314 [1987]).
Although the plea court did not advise defendant of potential deportation consequences, we see no reason to extend relief under People v Peque, in light of the fact that defendant affirmatively misrepresented to the court that he was a United States citizen. We have considered and rejected defendant's arguments to the contrary. Given the prior bail proceeding at which defendant's immigration status was discussed, it is highly unlikely that defendant mistakenly believed he was an American citizen. In any event, if that was his belief, he would not have had any reason to be concerned about deportation.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: DECEMBER 9, 2014
CLERK


