Opinion
Nos. 12–488 12–489.
2014-07-16
The PEOPLE of the State of New York, Respondent, v. Khalid BASSOU, Defendant–Appellant.
In consolidated criminal actions, defendant appeals from (1) a judgment of the Criminal Court of the City of New York, New York County (Abraham L. Clott, J. at plea and sentencing), rendered July 4, 2011, upon a plea of guilty, convicting him of petit larceny and imposing sentence; and (2) a judgment (same court and Judge), rendered July 4, 2011, upon a plea of guilty, convicting him of theft of services, and imposing sentence.
Present: SHULMAN, J.P., HUNTER, JR., LING–COHAN, JJ. PER CURIAM.
Judgment of conviction under docket number 2011NY049087 (Abraham L. Clott, J. at plea and sentencing), rendered July 4, 2011, reversed, on the law, and the accusatory instrument is dismissed. Judgment of conviction under docket number 2011NY026513 (Abraham L. Clott, J. at plea and sentencing), rendered July 4, 2011, affirmed.
The record demonstrates that defendant's guilty plea to theft of services ( see Penal Law § 165.15[2] ) in connection with the March 25, 2011 bar incident was knowing, intelligent and voluntary. Defendant's assignment of error relating to the plea court's advisement regarding deportation, to the extent preserved for appellate review, is lacking in merit. Assuming in defendant's favor that the plea court was under a duty to inform him of the immigration consequences of his guilty plea to this class A misdemeanor, an issue left open in People v. Peque (22 N.Y.3d 168, 197, n. 9 [2013] ), the allocution record shows that the court properly discharged whatever duty it may have had to do so ( id. at 197, 980 N.Y.S.2d 280; see also CPL 220.50 [7] ). Further, to the extent that defendant's ineffective assistance of counsel claim is based upon the denial of his CPL 440.10 motion, the claim is not properly before this court as his motion for leave to appeal was denied. On the existing record, to the extent it permits review, we find that defendant has failed to demonstrate that counsel provided improper advice on the immigration issue ( see People v. Salter, 30 A.D.3d 1129 [2006, 816 N.Y.S.2d 444, lv denied 7 N.Y.3d 928 [2006] ).
Vacatur of defendant's guilty plea to petit larceny in connection with the July 2, 2011 subway incident and the dismissal of that charge are mandated since, as the People concede, the conduct ascribed to defendant in the underlying accusatory instrument did not make out a legally sufficient case that defendant deprived the Transit Authority of the money accepted from the subway rider ( see People v. Hightower, 18 N.Y.3d 249, 254–255 [2011] ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.