PEOPLE v. HENRIQUEZ (2018)

Judgment, Supreme Court, New York County (Charles H. Solomon, J.), rendered April 20, 2010, convicting defendant, upon his plea of guilty, of grand larceny in the second and third degrees, and sentencing him, as a second felony offender, to an aggregate term of four to eight years, unanimously affirmed.

We previously held the appeal in abeyance (145 A.D.3d 543, 41 N.Y.S.3d 898 [1st Dept. 2016] ) and remanded for further proceedings pursuant to People v. Peque, 22 N.Y.3d 168, 980 N.Y.S.2d 280, 3 N.E.3d 617 (2013), cert. denied sub nom. Thomas v. New York, 574 US ––––, 135 S.Ct. 90, 190 L.Ed.2d 75 (2014).  On remand, the court correctly determined that defendant failed to show a reasonable probability that he would not have pleaded guilty had the court advised him of the possibility of deportation.

While defendant had significant ties to this country, that factor is outweighed by other factors.  At the time he pleaded guilty to grand larceny in this case, defendant was well aware that a prior grand larceny conviction in another county had already rendered him deportable, and that deportation proceedings on the basis of that conviction were already in progress;  it was the earlier conviction that ultimately led to his removal, wholly independent of this matter.  Furthermore, the disposition offered in the present case was favorable, given the strength of the case and defendant's prior record.  In addition, while defendant's trial counsel averred that although he did not specifically recall advising defendant of possible immigration consequences, it was his custom to do so, and the record contains multiple examples of trial counsel discussing his client's immigration issues with the court.  Under these circumstances, defendant was not prejudiced by the court's failure to advise him of the possibility of deportation, and vacatur of the plea is not warranted (see People v. Manon, 151 A.D.3d 626, 58 N.Y.S.3d 326 [1st Dept.], lv denied 30 N.Y.3d 981, 67 N.Y.S.3d 583, 89 N.E.3d 1263 [2017] ).