PEOPLE v. ARANA (2021)

ORDERED that the sentence is affirmed.

The People charged defendant, in a felony complaint, with menacing in the second degree as a hate crime (Penal Law §§ 120.14 [1]; 485.05), menacing in the second degree (Penal Law § 120.14 [1]), endangering the welfare of a child (Penal Law § 260.10 [1]), criminal possession of a weapon in the fourth degree (Penal Law § 265.01 [2]), and harassment in the second degree (Penal Law § 240.26 [1]). The factual portion of the complaint alleged that, at approximately 2:00 p.m. on August 3, 2016, at a train station in Queens, defendant approached the complaining witness and his daughter, pulled out a kitchen knife from his backpack, and stated, in sum and substance, “Come over here, I have something for you.”

On September 30, 2016, pursuant to a negotiated plea and sentencing agreement, the felony charge was dismissed and defendant pleaded guilty to menacing in the second degree in satisfaction of the accusatory instrument. The plea was in exchange for a promised sentence of a conditional discharge, to be imposed upon defendant's completion of a nine-month program, provided that, in the interim, defendant stays out of trouble and does not get rearrested, with a 364-day jail alternative if he failed to comply. In the course of his plea, the sufficiency of which is not challenged, defendant affirmed that he had fully discussed his case with his trial counsel and that he understood the possible immigration consequences of his plea.

Shortly thereafter, defendant was rearrested and he pleaded guilty to two counts of assault in the third degree as a hate crime. Consequently, on the instant matter, defendant was sentenced, as promised, to 364 days’ incarceration. Defendant has served his sentence.

On appeal, defendant seeks a sentence reduction to 179 days, arguing that the sentence imposed was excessive in that it rendered him ineligible for relief from certain immigration consequences.

A challenge to a fully served sentence on the ground of excessiveness is not academic where, as here, the sentence “has potential immigration consequences” (People v Broderick, 165 AD3d 972, 972 [2018]; see People v Vega, 165 AD3d 984 [2018]; People v Scott, 156 AD3d 913 [2017]; People v Ayala, 142 AD3d 1095, 1095 [2016]; People v Talbi, 45 Misc 3d 18, 20 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). Even assuming that the sentence imposed presents adverse immigration consequences to defendant, we decline to reduce the sentence under the circumstances presented (see People v Vega, 165 AD3d 984; People v Mendez, 64 Misc 3d 139[A], 2019 NY Slip Op 51210[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; People v Morales, 61 Misc 3d 130[A], 2018 NY Slip Op 51418[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]).

Accordingly, the sentence is affirmed.

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