PEOPLE v. LOPEZ (2021)

Judgment, Supreme Court, New York County (A. Kirke Bartley, Jr., J.), rendered December 21, 2018, as amended February 5, 2019, convicting defendant, upon his plea of guilty, of attempted criminal possession of a weapon in the second degree, and sentencing him, as a second felony offender, to a term of three years, 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, 182–183, 980 N.Y.S.2d 280, 3 N.E.3d 617 [2013], cert denied 574 U.S. 840, 135 S.Ct. 90, 190 L.Ed.2d 75 [2014]).  The record establishes that defendant was informed of the potential for deportation long before his plea when he was served, through his attorney on the record in open court, with a notice of immigration consequences (see People v. Delorbe, 35 N.Y.3d 112, 115, 125 N.Y.S.3d 327, 149 N.E.3d 20 [2020]).  We decline to review defendant's unpreserved claim in the interest of justice.  The circumstances render it highly unlikely that defendant could make the requisite showing of prejudice (see Peque, 22 N.Y.3d at 198–201, 980 N.Y.S.2d 280, 3 N.E.3d 617).  The record shows that at the time defendant pleaded guilty, he was already subject to mandatory deportation because of his prior robbery conviction, which constituted an aggravated felony under federal law.  Thus, regardless of whether he pleaded guilty in the present case, his deportation would have remained mandatory (see People v. Singh, 185 A.D.3d 480, 125 N.Y.S.3d 547 [1st Dept. 2020], lv denied 35 N.Y.3d 1070, 129 N.Y.S.3d 372, 152 N.E.3d 1174 [2020]).

The remarks made by counsel on the record are sufficient to permit review on direct appeal (see e.g. People v. Pequero, 158 A.D.3d 421, 67 N.Y.S.3d 813 [1st Dept. 2018]).  While defendant's counsel informed the court that the plea had “no immigration consequences,” it is clear that defendant's conviction of this aggravated felony required deportation.  Thus, counsel's performance “fell below an objective standard of reasonableness” (see People v. McDonald, 1 N.Y.3d 109, 113, 769 N.Y.S.2d 781, 802 N.E.2d 131 [2003]).  We conclude, however, that defendant did not establish the prejudice prong of an ineffective assistance counsel claim under the state or federal standards.  In light of the strength of the People's case, the favorable plea bargain he received, the length of the possible sentence that he faced if convicted after trial, and as noted above, the mandatory deportation he already faced for his prior robbery conviction regardless of the outcome of this case, defendant has not established the necessity of a hearing on the issue of prejudice (see People v. Melo–Cordero, 123 A.D.3d 595, 595–596, 999 N.Y.S.2d 42 [1st Dept. 2014]).