People v. Peque

• Decision Date: 06 October 2011
• Citation: People v. Peque, 88 A.D.3d 1024, 930 N.Y.S.2d 492, 2011 N.Y. Slip Op. 6950 (N.Y. App. Div. 2011)
• Parties: The PEOPLE of the State of New York, Respondent,v.Juan Jose PEQUE, also known as Juan Jose Peque Sicajan, Appellant.
• Court: New York Supreme Court — Appellate Division

88 A.D.3d 1024

930 N.Y.S.2d 492

2011 N.Y. Slip Op. 06950

The PEOPLE of the State of New York, Respondent,

v.Juan Jose PEQUE, also known as Juan Jose Peque Sicajan, Appellant.

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

Oct. 6, 2011.

OPINION TEXT STARTS HEREMelissa A. Latino, Albany, for appellant.Weeden A. Wetmore, District Attorney, Elmira (Susan Rider–Ulacco of counsel), for respondent.Before: ROSE, J.P., MALONE JR., KAVANAGH, STEIN and McCARTHY, JJ.MALONE JR., J.

Appeal from a judgment of the County Court of Chemung County(Hayden, J.), rendered November 6, 2009, convicting defendant upon his plea of guilty of the crime of rape in the first degree.

Defendant, an illegal immigrant who was temporarily residing in a hotel located in the Town of Chemung, Chemung County, forced a woman to have sexual intercourse with him in a bathroom stall of a bar located in the hotel.Defendant was charged by indictment with one count of rape in the first degree and pleaded guilty to the charge pursuant to a negotiated plea agreement whereby he was promised a sentence of 17 1/2 years in prison followed by five years of postrelease supervision.County Court sentenced defendant as promised and defendant now appeals.

Defendant argues that his plea was not knowing, voluntary and intelligent because neither County Court nor defense counsel advised him that he would be subject to deportation upon his conviction.Inasmuch as a defendant's potential for deportation is considered a collateral consequence of a criminal conviction, County Court's failure to advise defendant of such consequence does not render the plea invalid ( seeCPL 220.50[7];People v. Ford,86 N.Y.2d 397, 405, 633 N.Y.S.2d 270, 657 N.E.2d 265[1995];People v. Romero,82 A.D.3d 1013, 1013, 918 N.Y.S.2d 730[2011];see alsoPeople v. Harnett,16 N.Y.3d 200, 205–206, 920 N.Y.S.2d 246, 945 N.E.2d 439[2011] ).County Court engaged in a thorough plea colloquy wherein it adequately advised defendant of the rights he was giving up by pleading guilty, ascertained that defendant understood these rights and engaged in a satisfactory factual allocution.Accordingly, we find that defendant's plea was knowing, voluntary and intelligent ( seePeople v. Johnson,21 A.D.3d 1149, 1149, 800 N.Y.S.2d 785[2005];People v. Ward,2 A.D.3d 1219, 1219, 768 N.Y.S.2d 850[2003], lv. denied2 N.Y.3d 808, 781 N.Y.S.2d 308, 814 N.E.2d 480[2004] ).

While counsel's failure to accurately and adequately advise a defendant of the immigration consequences of a plea may constitute ineffective assistance of counsel( seePadilla v. Kentucky,––– U.S. ––––, ––––, 130 S.Ct. 1473, 1483–1486, 176 L.Ed.2d 284[2010];People v. McDonald,1 N.Y.3d 109, 115, 769 N.Y.S.2d 781, 802 N.E.2d 131[2003];People v. Argueta,46 A.D.3d 46, 49–50, 844 N.Y.S.2d 63[2007], lv. dismissed10 N.Y.3d 761, 854 N.Y.S.2d 323, 883 N.E.2d 1258[2008] ), we are unable to review defendant's claim in this regard as it involves matters largely outside of the record and is more appropriately addressed by a CPL article 440 motion ( seePeople v. Lafoe,75 A.D.3d 663, 664, 905 N.Y.S.2d 679[2010], lv. denied15 N.Y.3d 953, 917 N.Y.S.2d 113, 942 N.E.2d 324[2010];People v. Corbett,52 A.D.3d 1023,...