People v. Jose Delorbe


People v. Delorbe

Issue before the Court:

Whether a generic “immigration consequences form” presented to defendants by the prosecutor at arraignment, months before their actual plea, gives rise to a preservation requirement – where defendants must object to the court’s failure to inform them that they may be deported based upon their guilty plea, in violation of People v. Peque, 22 N.Y.3d 168 (2013) – in order to raise a Peque issue on appeal.


An “immigration consequences form” given to defendant Jose Delorbe at arraignment gave him a “reasonable opportunity” to have discovered the error and object to the plea court’s failure to advise him months later of the deportation consequences of his plea, as required under People v. Peque, 22 N.Y.3d 168 (2013). The narrow exception to the preservation rule therefore does not apply here and because the defendant did not preserve his claim, it was rejected and the judgment was affirmed. The denial of the defendant’s pro se C.P.L. 440.10 motion was also affirmed as based upon “conclusory allegations” that did not include “all the essential facts” required for relief. His constitutional right to counsel claim on the 440.10 motion was also denied as unpreserved.

CAL Observes:

A disappointing decision, authored by Judge Garcia, that elevates preservation rules above defendants’ due process right under Peque to be informed by the trial court of the deportation consequences of their pleas. The Court did reaffirm Peque itself – but it rejected the argument that requiring preservation in this context will effectively be the death knell of Peque, as these immigration forms will become routine and courts will feel less compelled to deliver the warnings, as occurred before Peque even while CPL 220.50 (7) required it. Both the majority and concurring opinions noted this plea took place before Peque was decided, and they apparently trust that future courts will still follow it. Only time will tell.

The three-judge concurrence declared that the Court “unanimously” held that this form does not satisfy a court’s responsibility under Peque, that Peque was violated in this case, and that the issue here was strictly one about preservation. It believed preservation was required here not because of the immigration form, but because the pro se 440.10 papers showed that the defendant did actually know about the possibility of deportation. Unlike the majority, which found that only the “opportunity” for notice is required to invoke the preservation rule, the concurrence spoke in terms of requiring “actual” knowledge. It found that this case did not present the “stark question” of whether the immigration consequences form Mr. Delorbe received, under the circumstances he received it, was sufficient to put him on notice that preservation was required.

Meanwhile, this case represents a setback in this State’s protection of noncitizen defendants from unknowingly suffering the cruel and devastating immigration consequences of their guilty pleas.