PEOPLE v. NIKOGHOSYAN (2021)

ORDERED that the judgment of conviction is affirmed.

Defendant pleaded guilty to criminal possession of a weapon in the fourth degree (Penal Law § 265.01 [1]). When this appeal was initially heard, the sole argument raised by defendant was that he had not entered his guilty plea knowingly, voluntarily, and intelligently because the court did not advise him, prior to entering the plea, of its potential deportation consequences. In a decision and order dated August 21, 2020, this court found that the Criminal Court had failed to advise defendant of the potential deportation consequences of his plea (People v Nikoghosyan, 68 Misc 3d 130[A], 2020 NY Slip Op 50952[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). Consequently, we held the appeal in abeyance and remitted the matter to the Criminal Court to afford defendant an opportunity to move to vacate his plea and “ ‘establish the existence of a reasonable probability that, had the court warned the defendant of the possibility of deportation, he ․ would have rejected the plea and opted to go to trial’ ” (id. at *2, quoting People v Peque, 22 NY3d 168, 176 [2013]).

Upon remittitur, the Criminal Court reported that, as of February 10, 2021, defendant had not moved to vacate his plea. Pursuant to this court's decision and order dated August 21, 2020, defendant's time to do so has now expired. Consequently, we find no basis upon which to reverse the judgment of conviction (see People v Kostyk, 186 AD3d 744 [2020]; People v Arana, 179 AD3d 826 [2020]; People v Gonzalez, 58 Misc 3d 145[A], 2017 NY Slip Op 51948[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2017]).

Accordingly, the judgment of conviction is affirmed.

ALIOTTA, P.J., ELLIOT and TOUSSAINT, JJ., concur.