People v. Delorbe

• Decision Date: 31 March 2020
• Docket Number: No. 21,21
• Citation: 149 N.E.3d 20,35 N.Y.3d 112,125 N.Y.S.3d 327
• Parties: The PEOPLE of the State of New York, Respondent, v. Jose DELORBE, Appellant.
• Court: New York Court of Appeals Court of Appeals

35 N.Y.3d 112
149 N.E.3d 20
125 N.Y.S.3d 327

The PEOPLE of the State of New York, Respondent,
v.
Jose DELORBE, Appellant.

No. 21

Court of Appeals of New York.

March 31, 2020

OPINION OF THE COURT

GARCIA, J.

35 N.Y.3d 115

"[D]ue process compels a trial court to apprise a defendant that, if the defendant is not an American citizen, he or she may be deported as a consequence of a guilty plea to a felony" ( People v. Peque, 22 N.Y.3d 168, 176, 980 N.Y.S.2d 280, 3 N.E.3d 617 [2013] ). However, before we may consider whether a trial court fulfilled that obligation, we must determine whether a defendant preserved the claim as a matter of law for our review or whether an exception to the preservation doctrine applies (see id. at 182, 980 N.Y.S.2d 280, 3 N.E.3d 617 ; see also N.Y. Const Art VI, § 3 [a]; CPL 470.05[2] ). Here, service on defendant, in open court and months before the plea proceedings, of a "Notice of Immigration Consequences" form provided him with 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 to him (see Peque, 22 N.Y.3d at 182–183, 980 N.Y.S.2d 280, 3 N.E.3d 617 ; see also People v. Williams, 27 N.Y.3d 212, 214, 32 N.Y.S.3d 17, 51 N.E.3d 528 [2016] ). Therefore, because defendant did not preserve the claim he now raises, and because defendant's other contentions are without merit, we affirm.

I.

In July 2011, the victim in this case arrived home and discovered an intruder. She observed the perpetrator run from her bedroom and leave the apartment. The victim later determined that money was missing from her apartment. Police developed fingerprints from a box in the victim's bedroom, and a match was made to defendant. He was arrested and charged with burglary in the second degree.

Defendant, who emigrated from the Dominican Republic to the United States at an early age and became a legal permanent resident, was arraigned in Supreme Court on the burglary charge in August

125 N.Y.S.3d 329

149 N.E.3d 22

2011. During the proceedings, the People filed a "Notice of Immigration Consequences" (the "Notice")

35 N.Y.3d 116

with the court and provided a copy to defense counsel. After defendant was arraigned, his counsel stated on the record that he was "handing [defendant] the [notice of] immigration consequences [form]," which the court affirmatively acknowledged. That Notice, provided to defendant in three languages (including English and Spanish), stated as follows:

"If you are not a United States citizen, a plea of guilty to any offense, a conviction by trial verdict, or a youthful offender adjudication subjects you to a risk that adverse consequences will be imposed on you by the United States immigration authorities, including, but not limited to, removal from the United States, exclusion from admission to the United States, and/or denial of naturalization. Because the immigration consequences applicable in your particular case may depend on factors such as your current immigration status, your length of residence in the United States, and your previous criminal history, you should consult with your attorney for advice specific to your circumstances.

"The following are designated as deportable offenses ...: ...

"[A]ny offense designated an ‘aggravated felony’ under 8 U.S.C. § 1101(a)(43), including, but not limited to: ... burglary, robbery, receipt of stolen property, or any other theft-related offense or crime of violence for which a sentence of one year or more is imposed ....

"In addition, if the offense constitutes an ‘aggravated felony,’ or if you are not a lawful permanent resident of the United States (or have not been such for at least five years with at least seven years' continuous residency) and the offense is any deportable offense, there will be additional consequences, including, but not limited to, your ineligibility for discretionary cancellation of removal by the Attorney General" (emphases added).

After eight months and several calendar calls at which the People presented a plea offer to defendant, he appeared with counsel and pleaded guilty to attempted burglary in the second degree. Despite his status as a second violent felony offender upon his second attempted burglary conviction (see

35 N.Y.3d 117

Penal Law §§ 70.02[1][c] ; 70.04[1][a] ), the People did not seek to adjudicate defendant a predicate violent felon. During the plea colloquy and allocution, which preceded this Court's decision in Peque, Supreme Court did not mention immigration consequences that could result from the conviction, nor did defendant ask about potential immigration consequences. The following month, defendant was sentenced to agreed-upon terms of five years of incarceration plus three years of post-release supervision.¹ He did not seek to withdraw his plea and, again, did not inquire about potential immigration consequences.

Four years later, defendant filed a pro se motion pursuant to CPL 440.10 to vacate his conviction. Defendant alleged that his counsel provided ineffective assistance because – according to defendant – she had neglected to inform him of potential immigration consequences resulting from his plea. Defendant asked Supreme Court to vacate his conviction or, in the alternative, to either require his counsel to submit an affidavit responding to his allegations

149 N.E.3d 23

125 N.Y.S.3d 330

or to appoint new counsel in the CPL 440.10 proceeding to assist with obtaining such an affidavit. Defendant's motion was supported by two cursory affidavits alleging that his counsel had "fail[ed] to inform [him] that pleading guilty could [affect him] in immigration" and "did not explain anything about [defendant] losing [his] residency."

Supreme Court denied defendant's motion, finding that his unsworn assertion in his supporting papers that, had he been informed of the immigration consequences of his plea, he would have asked his attorney to negotiate a plea with less severe immigration consequences was "conclusory" and "unsupported by any factual allegations regarding the significance that potential deportation holds for him or his incentive to remain in the United States," as required by the Criminal Procedure Law (see CPL 440.30[4][b] ). In addition, the court noted that defense counsel had negotiated a particularly favorable plea deal, and succeeded in avoiding a sentence enhancement for defendant as a second violent felony offender (see generally Penal Law § 70.04 ). As a result, the court denied defendant's motion without a hearing.

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The Appellate Division unanimously affirmed both defendant's conviction on his direct appeal – concluding that his Peque claim was unpreserved – and Supreme Court's summary denial of defendant's CPL 440.10 motion (see People v. Delorbe, 165 A.D.3d 531, 531, 83 N.Y.S.3d 900 [1st Dept. 2018] ). According to the court, provision of the Notice to defendant meant that his direct appeal did not fit within "the narrow exception to the preservation requirement" set forth in Peque, as defendant had been given "the opportunity to raise the issue" of the plea court's failure to inform him that his plea could lead to immigration consequences ( id. ). The Appellate Division also held that Supreme Court providently exercised its discretion in denying the CPL 440.10 motion without a hearing, as defendant had "alleged no facts to support his claim that had he known that his guilty plea could result in his deportation, he would not have pleaded guilty and instead would have proceeded to trial, and his conclusory allegations were insufficient to warrant a hearing" ( id. ).

A Judge of this Court granted defendant leave to appeal ( People v. Delorbe, 32 N.Y.3d 1125, 93 N.Y.S.3d 263, 117 N.E.3d 822 [2018] ).

II.

Defendant argues that he was not required to preserve his due process claim that the trial court failed to inform him of potential adverse immigration consequences as a result of his conviction (see Peque, 22 N.Y.3d at 176, 980 N.Y.S.2d 280, 3 N.E.3d 617 ). We disagree.

In Peque, based on our "review of the characteristics of modern immigration law and its entanglement with the criminal justice system" ( 22 N.Y.3d at 175, 980 N.Y.S.2d 280, 3 N.E.3d 617 ), we held that "deportation is a plea consequence of such tremendous importance, grave impact and frequent occurrence that a defendant is entitled to notice that it may ensue from a plea" ( id. at 176, 980 N.Y.S.2d 280, 3 N.E.3d 617 ). We explained that while deportation is technically a collateral consequence of a conviction (see id. at 192, 980 N.Y.S.2d 280, 3 N.E.3d 617 ), it "is an automatic consequence of a guilty plea for most noncitizen defendants; absent some oversight by federal authorities, a defendant duly convicted of almost any felony will inevitably be removed from the United States" ( id. ). A "fundamental injustice" would therefore result "from completely...