Opinion
05-02-2017
The PEOPLE of the State of New York, Respondent, v. Rosa JIMENEZ, Defendant–Appellant.
Seymour W. James, Jr., The Legal Aid Society, New York (Harold V. Ferguson, Jr. of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Oliver McDonald of counsel), for respondent.
Seymour W. James, Jr., The Legal Aid Society, New York (Harold V. Ferguson, Jr. of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Oliver McDonald of counsel), for respondent.
ACOSTA, J.P., MAZZARELLI, MANZANET–DANIELS, WEBBER, JJ.
Judgment, Supreme Court, New York County (Daniel P. FitzGerald, J. at plea; Marcy L. Kahn, J. at sentencing), rendered May 13, 2015, convicting defendant of criminal possession of a controlled substance in the fifth degree, and sentencing her to three years' probation, unanimously affirmed.
Defendant's contention that the plea court failed to advise her of the true immigration consequences of her plea is unpreserved (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. ––––, 135 S.Ct. 90, 190 L.Ed.2d 75 [2014] ), and we decline to review it in the interest of justice. As an alternative holding, we find that the court met its obligation under Peque (see id. at 196–197, 980 N.Y.S.2d 280, 3 N.E.3d 617 ) by warning defendant that there was "a good likelihood" that she "could" be deported, since Peque does not "require a plea court to ascertain whether a particular conviction carries mandatory deportation under federal law and advise a defendant accordingly" (People v. Manuel, 143 A.D.3d 473, 474, 38 N.Y.S.3d 551 [1st Dept. 2016], lv. denied 28 N.Y.3d 1147, 52 N.Y.S.3d 299, 74 N.E.3d 684 [2017] ). In any event, even where deportation is legally mandatory, as a practical matter it still requires the immigration authorities to take the necessary actions, and thus the deportation consequences of defendant's plea could fairly be characterized as likely rather than absolutely certain.