The People of the State of New York, Respondent, v. Ricardo D. Torres, Appellant. (2024)

ORDERED that the judgment of conviction is affirmed.

Defendant pleaded guilty to petit larceny (Penal Law § 155.25) in satisfaction of an accusatory instrument that charged him with that offense and criminal mischief in the fourth degree (Penal Law § 145.00 [1]). On appeal, defendant contends that the appeal should be held in abeyance and the matter remitted to the City Court to afford defendant an opportunity to move to vacate his plea because the City Court did not advise him, prior to entering the plea, of its potential deportation consequences.

Since defendant was sentenced in the same proceeding in which he entered his plea of guilty, and was not otherwise made aware of the deportation consequences of his plea (cf. People v Delorbe, 35 NY3d 112, 120-121 [2020]), he had no practical ability to object to the deficiency in the allocution, which was clear from the face of the record, or to otherwise tell the court, if he chose, that he would not have pleaded guilty if he had known about the possibility of deportation (see People v Peque, 22 NY3d 168, 182 [2013]). Consequently, defendant's claim is reviewable on this appeal despite the fact that he did not move to withdraw his plea or to vacate the judgment of conviction (see id. at 183; People v Luna-Velasquez, 75 Misc 3d 14, 19 [App Term, 2d Dept, 9th & 10th Jud Dists 2022]; People v Taylor, 66 Misc 3d 149[A], 2020 NY Slip Op 50269[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2020]).

Assuming, without deciding, that Peque applies to misdemeanor pleas (see 22 NY3d at 197 n 9; see also People v Alexander, 65 Misc 3d 151[A], 2019 NY Slip Op 51874[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2019]; People v Artwell, 64 Misc 3d 65, 67 [App Term, 2d Dept, 9th & 10th Jud Dists 2019]; People v Pantino, 55 Misc 3d 138[A], 2017 NY Slip Op 50512[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2017]; People v Martial, 50 Misc 3d 131[A], 2015 NY Slip Op 51932[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2015]), the record demonstrates that the City Court failed to notify defendant of the deportation consequences of his guilty plea.

Nevertheless, "the trial court's failure to provide such advice does not entitle the defendant to automatic withdrawal or vacatur of the plea" (People v Peque, 22 NY3d at 176). Rather, a defendant seeking to vacate a plea based on this defect "must establish the existence of a reasonable probability that, had the court warned the defendant of the possibility of deportation, he or she would have rejected the plea and opted to go to trial" (id.). Under the circumstances of this case, where nothing in the record contradicts defendant's concession in his appellate brief that "the repository inquiry reflects that [defendant] was born in the United States," we reject defendant's request to hold the appeal in abeyance and remit the matter to the City Court (see People v Pickett, 222 AD3d 886, 886 [2023]; People v Hightower-Castro, 219 AD3d 504, 505 [2023]; People v Sawyer, 214 AD3d 1323, 1324 [2023]).

Accordingly, the judgment of conviction is affirmed.

DRISCOLL, J.P., WALSH and GOLDBERG-VELAZQUEZ, JJ., concur.

ENTER:

Paul Kenny

Chief Clerk

Decision Date: December 5, 2024