Opinion
15412 Ind. No. 5073/15 Case No. 2019–4997
03-03-2022
The PEOPLE of the State of New York, Respondent, v. Reimy PENA, Defendant–Appellant.
Caprice R. Jenerson, Office of the Appellate Defender, New York (Stephen R. Strother of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Stephen J. Kress of counsel), for respondent.
Caprice R. Jenerson, Office of the Appellate Defender, New York (Stephen R. Strother of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Stephen J. Kress of counsel), for respondent.
Manzanet–Daniels, J.P., Mazzarelli, Singh, Scarpulla, Higgitt, JJ.
Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered July 20, 2016, convicting defendant, upon his plea of guilty, of attempted robbery in the second degree, and sentencing him to a prison term of two 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] ). Months before defendant's plea, the People announced, on the record in open court and in the presence of defendant, defense counsel and an interpreter, that they were serving 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] ; People v. Lopez, 198 A.D.3d 515, 155 N.Y.S.3d 161 [1st Dept. 2020] ). Although the record does not specifically reflect that counsel handed or showed the notice to defendant, "the general rule is that when a litigant appears by an attorney, notice to the attorney will serve as notice to the client" ( People ex rel. Knowles v. Smith, 54 N.Y.2d 259, 266, 445 N.Y.S.2d 103, 429 N.E.2d 781 [1981] ). Accordingly, defendant had "a reasonable opportunity to object to the plea court's failure to advise him of the potential deportation consequences of his plea, making the narrow exception to the preservation doctrine unavailable" ( Delorbe, 35 N.Y.3d at 115, 125 N.Y.S.3d 327, 149 N.E.3d 20 ).
We decline to review defendant's unpreserved claim in the interest of justice. In any event, 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 ).