Opinion
No. 570170/17
05-16-2024
The People of the State of New York, Respondent, v. Nickoy Dover, Defendant-Appellant.
Unpublished Opinion
Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Guy H. Mitchell, J.), rendered October 21, 2016, upon a plea of guilty, convicting him of petit larceny, and imposing sentence.
PRESENT: Brigantti, J.P., James, Perez, JJ.
PER CURIAM.
Judgment of conviction (Guy H. Mitchell, J.), rendered October 21, 2016, affirmed.
Even assuming arguendo that the plea court was under a duty to inform defendant of the immigration consequences of his guilty plea to the Class A misdemeanor offense of petit larceny (see Penal Law § 155.25), an issue left open in People v Peque (22 N.Y.3d 168, 197 n 9 [2013], cert denied 574 U.S. 840 [2014]), the proper remedy for a Peque violation is to hold the appeal in abeyance to afford defendant the opportunity to move to vacate the plea upon a showing that there is a reasonable probability that he would not have pleaded guilty had he been made aware of the deportation consequences of the plea (see e.g. People v Acosta, 202 A.D.3d 447 [2022]; People v Johnson, 165 A.D.3d 556 [2018]). However, the only relief defendant requests for the alleged Peque violation is dismissal of the accusatory instrument rather that vacatur of the plea, and he expressly requests that this Court affirm the conviction if it does not grant a dismissal. Since it cannot be said that no penological purpose would be served by remanding the matter to Criminal Court, dismissal is not warranted and we affirm on this basis.
We also note that if this 2016 guilty plea results in immigration consequences, defendant has a remedy pursuant to CPL 440.10(1)(j), which provides for a motion to vacate the conviction for a class A or unclassified misdemeanor based upon ongoing collateral consequences, including potential or actual immigration consequences (see CPL 440.10[1][j]).