| People v Delorbe |
| 2018 NY Slip Op 06996 [165 AD3d 531] |
| October 18, 2018 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Jose Delorbe, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (David Bernstein and RobinNichinsky of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Alexander Michaels of counsel), forrespondent.
Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered May 23, 2012, asamended June 14, 2012, convicting defendant, upon his plea of guilty, of attempted burglary inthe second degree, and sentencing him to a prison term of five years, and order (same court andJustice), entered on or about July 27, 2016, denying defendant's CPL 440.10 motion to vacate thejudgment, unanimously affirmed.
Defendant has not established that the narrow exception to the preservation requirementapplies to his Peque claim (seePeople v Peque, 22 NY3d 168 [2013], cert denied 574 US &mdash, 135 S Ct 90[2014]). Defendant was informed of his potential deportation by a notice of immigrationconsequences served upon him in the presence of his attorney over a year before the guilty plea(see e.g. People v Barry, 149 AD3d494 [1st Dept 2017], lv denied 29 NY3d 1123 [2017]; People v Diakite, 135 AD3d 533[1st Dept 2016], lv denied 27 NY3d 1131 [2016]), which gave him the opportunity toraise the issue. Review of defendant's unpreserved claim in the interest of justice isunwarranted.
The court providently exercised its discretion in denying defendant's CPL 440.10 motionwithout holding a hearing (see People vSamandarov, 13 NY3d 433, 439-440 [2009]). Defendant alleged no facts to support hisclaim that had he known that his guilty plea could result in his deportation, he would not havepleaded guilty and instead would have proceeded to trial, and his conclusory allegations wereinsufficient to warrant a hearing (see CPL 440.30 [4] [b],[d]). Concur—Richter,J.P., Manzanet-Daniels, Kapnick, Kern, Moulton, JJ.