People v. Lovejoy

People v Lovejoy (2016 NY Slip Op 01111)

People v Lovejoy

2016 NY Slip Op 01111

Decided on February 16, 2016

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 16, 2016
Tom, J.P., Acosta, Moskowitz, Gische, JJ.
218 1051/97

Wilens & Baker, New York (Daniel S. Kratka of counsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (Eric C. Washer of counsel), for respondent.

Order, Supreme Court, Bronx County (Barbara F. Newman, J.), entered on or about June 11, 2014, which denied defendant's CPL 440.10 motion to vacate a 1999 judgment of conviction, unanimously affirmed.

Defendant's claim that the court failed to advise him of the immigration consequences of his plea (see People v Peque, 22 NY3d 168 [2013], cert denied 574 US &mdash, 135 S Ct 90 [2014]), is not properly raised in a CPL article 440.10 motion, because that claim would be "clear from the face of the record" (People v Llibre, 125 AD3d 422, 423 [1st Dept 2015], lv denied 26 NY3d 969 [2015]). While the remedy for a Peque error may involve a remand, upon the direct appeal, for fact-finding proceedings (22 NY3d at 200-201), that circumstance does not permit a record-based Peque claim to be raised on a CPL 440.10 motion (Llibre, 125 AD3d at 423).

Even if the statute permitted a record-based Peque claim to be raised in a CPL 440.10 motion, defendant's claim nonetheless would be unavailing. Although Peque is retroactive to cases pending on direct appeal (People v Brazil, 123 AD3d 466 [1st Dept 2014], lv denied 25 NY3d 1198 [2015]), there is no basis to extend retroactivity to collateral review of convictions that have become final (Llibre, 125 AD3d at 424).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 16, 2016

CLERK