State of New York OPINION Court of Appeals This opinion is uncorrected and subject to revision before publication in the New York Reports. No. 21 The People &c., Respondent, v. Jose Delorbe, Appellant. Robin Nichinsky, for appellant. Alexander Michaels, for respondent. Immigrant Defense Project, amicus curiae. GARCIA, J.: “[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 NY3d 168, 176 [2013]). However, before we may consider -1- -2- No. 21 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; see also NY 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 NY3d at 182-183; see also People v Williams, 27 NY3d 212, 214 [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 2011. During the proceedings, the People filed a “Notice of Immigration Consequences” (the “Notice”) 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 -2- -3- No. 21 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 ...
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals