Opinion
405 KA 16–01503
04-24-2020
The PEOPLE of the State of New York, Respondent, v. Olasunkanmi S. ADEJUMO, Defendant–Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALAN WILLIAMS OF COUNSEL), FOR DEFENDANT–APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIEL J. PUNCH OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALAN WILLIAMS OF COUNSEL), FOR DEFENDANT–APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIEL J. PUNCH OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, LINDLEY, CURRAN, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him of attempted criminal possession of a forged instrument in the second degree ( Penal Law §§ 110.00, 170.25 ) upon his plea of guilty to a superior court information. Defendant contends that his written waiver of indictment was invalid because it did not state the approximate time of the offense for which he waived indictment. Because defendant's contention is that the indictment waiver form omitted "non-elemental factual information," that contention is "forfeited by [his] guilty plea" inasmuch as defendant "lodges no claim that he lacked notice of the precise crime[ ] for which he waived prosecution by indictment" ( People v. Thomas, 34 N.Y.3d 545, 569, 122 N.Y.S.3d 226, 144 N.E.3d 970, 2019 N.Y. Slip Op. 08545, *8 [2019 ]; see People v. Ramirez, 180 A.D.3d 1378, 1378, 115 N.Y.S.3d 725 [4th Dept. 2020] ).
Defendant further contends that his plea was rendered involuntary by County Court's alleged failure to advise him of the potential deportation consequences of his plea. We agree with defendant that his contention survives his waiver of the right to appeal (see People v. Roman, 160 A.D.3d 1492, 1492, 72 N.Y.S.3d 899 [4th Dept. 2018] ) and conclude that, under the circumstances presented here, defendant was required to preserve the issue for our review and did so by moving to vacate the judgment of conviction pursuant to CPL 440.10 (see generally People v. Conceicao, 26 N.Y.3d 375, 381, 23 N.Y.S.3d 124, 44 N.E.3d 199 [2015] ; People v. Peque, 22 N.Y.3d 168, 182–183, 980 N.Y.S.2d 280, 3 N.E.3d 617 [2013], cert. denied 574 U.S. 840, 135 S.Ct. 90, 190 L.Ed.2d 75 [2014] ; People v. Johnson, 128 A.D.3d 1539, 1539, 7 N.Y.S.3d 925 [4th Dept. 2015], lv denied 25 N.Y.3d 1203, 16 N.Y.S.3d 525, 37 N.E.3d 1168 [2015] ). Nevertheless, we reject defendant's contention. Courts "are to be afforded considerable latitude in stating the requisite advice" during the plea colloquy, and the record reflects that the court sufficiently "assure[d] itself that ... defendant [knew] of the possibility of deportation prior to entering [his] guilty plea" ( Peque, 22 N.Y.3d at 197, 980 N.Y.S.2d 280, 3 N.E.3d 617 ; see People v. Dealmeida, 124 A.D.3d 1405, 1406, 1 N.Y.S.3d 704 [4th Dept. 2015] ).