Opinion
03-22-2017
The PEOPLE, etc., respondent, v. Alexander FERNANDEZ, appellant.
Laurette D. Mulry, Riverhead, NY (Alfred J. Cicale of counsel), for appellant. Thomas J. Spota, District Attorney, Riverhead, NY (Lauren Tan of counsel), for respondent.
Laurette D. Mulry, Riverhead, NY (Alfred J. Cicale of counsel), for appellant.Thomas J. Spota, District Attorney, Riverhead, NY (Lauren Tan of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (Cohen, J.), rendered January 13, 2015, convicting him of attempted assault in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that the Supreme Court failed to properly advise him of the immigration consequences of his plea of guilty is unpreserved for appellate review, as he failed to raise the issue or move to withdraw his plea despite indication on the record that he was aware of the immigration consequences of pleading guilty (see People v. Pastor, 28 N.Y.3d 1089, 45 N.Y.S.3d 317, 68 N.E.3d 42 ; People v. Peque, 22 N.Y.3d 168, 182–183, 980 N.Y.S.2d 280, 3 N.E.3d 617 ; People v. Stewart, 142 A.D.3d 629, 36 N.Y.S.3d 602 ). In any event, that contention is without merit (see People v. Peque, 22 N.Y.3d at 197, 980 N.Y.S.2d 280, 3 N.E.3d 617 ; People v. Egbunike, 133 A.D.3d 776, 777, 19 N.Y.S.3d 184 ; People v. Martial, 125 A.D.3d 688, 689, 2 N.Y.S.3d 591 ).
To the extent that the defendant raises a claim predicated on Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284, the record does not demonstrate whether defense counsel misadvised or failed to advise him about the possibility of deportation before he pleaded guilty. A motion pursuant to CPL 440.10 is the appropriate forum for reviewing any such claim which relates to matters not on the record (see People v. Pastor, 28 N.Y.3d 1089, 45 N.Y.S.3d 317, 68 N.E.3d 42 ; People v. Peque, 22 N.Y.3d at 202, 980 N.Y.S.2d 280, 3 N.E.3d 617 ; People v. Drammeh, 100 A.D.3d 650, 651, 953 N.Y.S.2d 274 ).
RIVERA, J.P., LEVENTHAL, HALL and DUFFY, JJ., concur.