| People v Brazil |
| 2014 NY Slip Op 08555 [123 AD3d 466] |
| December 9, 2014 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Robert Brazil, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno ofcounsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Patrick J. Hynes of counsel), forrespondent.
Judgment, Supreme Court, New York County (Robert M. Stolz, J.), rendered March9, 2011, convicting defendant, upon his plea of guilty, of criminal sale of a controlledsubstance in the fifth degree, and sentencing him, as a second felony drug offenderpreviously convicted of a violent felony, to a term of 2
Defendant claims that his plea was involuntary because the court did not advise himthat if he was not a United States citizen, he could be deported as a result of his plea, asrequired under People vPeque (22 NY3d 168 [2013], cert denied 574 US &mdash, 135 SCt 90 [2014]). The People argue that Peque is a new rule within the meaning ofPeople v Pepper (53 NY2d 213 [1981], cert denied 454 US 967 [1981]),and therefore should apply prospectively only, and not to cases that were on direct appealwhen Peque was decided. Contrary to the People's contention, we find thatPeque is a rule of federal constitutional law. Peque was primarily basedon federal constitutional principles. Indeed, Peque relied mainly on federal caselaw and state authorities grounded in federal constitutional principles (see People v Harnett, 16 NY3d200, 206 [2011]; People vGravino, 14 NY3d 546, 553-554 [2010]). Any new rule of criminal proceduremandated by the federal constitution must apply to the cases still on direct appeal(People v Martello, 93 NY2d 645, 650 [1999], citing Griffith v Kentucky,479 US 314 [1987]). Accordingly, Peque is applicable to this case, since it is ondirect appeal (Griffith v Kentucky, 479 US 314 [1987]).
Although the plea court did not advise defendant of potential deportationconsequences, we see no reason to extend relief under People v Peque, in light ofthe fact that defendant affirmatively misrepresented to the court that he was a UnitedStates citizen. We have considered and rejected defendant's arguments to the contrary.Given the prior bail proceeding at which defendant's immigration status was discussed, itis highly unlikely that defendant mistakenly believed he was an American citizen. In anyevent, if that was his belief, he would not have had any reason to be concerned aboutdeportation. Concur—Sweeny, J.P., Renwick, Saxe and Richter, JJ.