Opinion
7404 7405 Ind. 3929/11
10-18-2018
The PEOPLE of the State of New York, Respondent, v. Jose DELORBE, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (David Bernstein and Robin Nichinsky of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Alexander Michaels of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (David Bernstein and Robin Nichinsky of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Alexander Michaels of counsel), for respondent.
Richter, J.P., Manzanet–Daniels, Kapnick, Kern, Moulton, JJ.
Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered May 23, 2012, as amended June 14, 2012, convicting defendant, upon his plea of guilty, of attempted burglary in the second degree, and sentencing him to a prison term of five years, and order (same court and Justice), entered on or about July 27, 2016, denying defendant's CPL 440.10 motion to vacate the judgment, unanimously affirmed.
Defendant has not established that the narrow exception to the preservation requirement applies to his Peque claim (see People v. Peque, 22 N.Y.3d 168, 980 N.Y.S.2d 280, 3 N.E.3d 617 [2013], cert denied 574 U.S. ––––, 135 S.Ct. 90, 190 L.Ed.2d 75 [2014] ). Defendant was informed of his potential deportation by a notice of immigration consequences served upon him in the presence of his attorney over a year before the guilty plea (see e.g. People v. Barry, 149 A.D.3d 494, 52 N.Y.S.3d 323 [1st Dept. 2017], lv denied 29 N.Y.3d 1123, 64 N.Y.S.3d 673, 86 N.E.3d 565 [2017] ; People v. Diakite, 135 A.D.3d 533, 24 N.Y.S.3d 584 [1st Dept. 2016], lv. denied 27 N.Y.3d 1131, 39 N.Y.S.3d 113, 61 N.E.3d 512 [2016] ), which gave him the opportunity to raise the issue. Review of defendant's unpreserved claim in the interest of justice is unwarranted.
The court providently exercised its discretion in denying defendant's CPL 440.10 motion without holding a hearing (see People v. Samandarov, 13 NY3d 433, 439–440, 892 N.Y.S.2d 823, 920 N.E.2d 930 [2009] ). Defendant alleged no facts to support his claim that had he known that his guilty plea could result in his deportation, he would not have pleaded guilty and instead would have proceeded to trial, and his conclusory allegations were insufficient to warrant a hearing (see CPL 440.30[4][b],[d] ).