People v. Brazil, 12461, 2159N/09

• Decision Date: 09 December 2014
• Docket Number: 12461, 2159N/09
• Citation: 123 A.D.3d 466,2014 N.Y. Slip Op. 08555,998 N.Y.S.2d 181
• Parties: The PEOPLE of the State of New York, Respondent, v. Robert BRAZIL, etc., Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

123 A.D.3d 466
998 N.Y.S.2d 181
2014 N.Y. Slip Op. 08555

The PEOPLE of the State of New York, Respondent
v.
Robert BRAZIL, etc., Defendant–Appellant.

12461, 2159N/09

Supreme Court, Appellate Division, First Department, New York.

Dec. 9, 2014.

998 N.Y.S.2d 181

Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Patrick J. Hynes of counsel), for respondent.

SWEENY, J.P., RENWICK, SAXE, RICHTER, JJ.

Opinion

123 A.D.3d 466

Judgment, Supreme Court, New York County (Robert M. Stoltz, J.), rendered March 9, 2011, convicting defendant, upon his plea of guilty, of criminal sale of a controlled substance in the fifth degree, and sentencing him, as a second felony drug offender previously convicted of a violent felony, to a term of 2 ½ years, unanimously affirmed.

998 N.Y.S.2d 182

Defendant claims that his plea was involuntary because the court did not advise him that if he was not a United States citizen, he could be deported as a result of his plea, as required under People v. Peque, 22 N.Y.3d 168, 980 N.Y.S.2d 280, 3 N.E.3d 617 (2013), cert. denied –––U.S. ––––, 135 S.Ct. 90, 190 L.Ed.2d 75 (2014). The People argue that Peque is a new rule within the meaning of People v. Pepper, 53 N.Y.2d 213, 440 N.Y.S.2d 889, 423 N.E.2d 366 (1981), cert. denied 454 U.S. 967, 102 S.Ct. 510, 70 L.Ed.2d 383 (1981), and therefore should apply prospectively only, and not to cases that were on direct appeal when Peque was decided. Contrary to the People's contention, we find that Peque is a rule of federal constitutional law. Peque was primarily based on federal constitutional principles. Indeed, Peque relied mainly on federal case law and state authorities grounded in federal constitutional principles (see People v. Harnett, 16 N.Y.3d...