Opinion
08-17-2016
The PEOPLE, etc., respondent, v. Peter JOSEPH, appellant.
Thomas T. Keating, Dobbs Ferry, NY, for appellant. James A. McCarty, Acting District Attorney, White Plains, NY (Hae Jin Liu and Laurie G. Sapakoff of counsel), for respondent.
Thomas T. Keating, Dobbs Ferry, NY, for appellant.
James A. McCarty, Acting District Attorney, White Plains, NY (Hae Jin Liu and Laurie G. Sapakoff of counsel), for respondent.
Opinion Appeal by the defendant from a judgment of the County Court, Westchester County (Everett, J.), rendered December 16, 2014, convicting him of assault in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's waiver of his right to appeal was valid (see People v. Sanders, 25 N.Y.3d 337, 12 N.Y.S.3d 593, 34 N.E.3d 344 ; People v. Lopez, 6 N.Y.3d 248, 254, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ). The defendant's valid waiver of his right to appeal precludes appellate review of his contention that he was deprived of the effective assistance of counsel except to the extent that the alleged ineffective assistance affected the voluntariness of his plea (see People v. Tarrant, 114 A.D.3d 710, 711, 979 N.Y.S.2d 827 ). Defense counsel's alleged failure to properly advise the defendant of the immigration consequences of his plea would affect the voluntariness of the plea and thus is reviewable by this Court (see People v. Montane, 110 A.D.3d 1101, 1102, 974 N.Y.S.2d 257 ; People v. Drammeh, 100 A.D.3d 650, 953 N.Y.S.2d 274 ).
In Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284, the United States Supreme Court held that the Sixth Amendment (U.S. Const. Sixth Amend.) requires counsel for defendants in criminal actions to advise their noncitizen clients about the risk of deportation arising from a plea of guilty. Further, “inaccurate advice about a guilty plea's immigration consequences” may constitute ineffective assistance of counsel (People v. Baret, 23 N.Y.3d 777, 785, 992 N.Y.S.2d 738, 16 N.E.3d 1216 ; see People v. McDonald, 1 N.Y.3d 109, 111, 769 N.Y.S.2d 781, 802 N.E.2d 131 ; People v. Pinto, 133 A.D.3d 787, 21 N.Y.S.3d 115 ).
In this case, the record as a whole indicates that defense counsel advised the defendant of the risk of deportation arising from a plea of guilty, and the defendant was properly advised of that risk (see People v. Castro, 133 A.D.3d 986, 20 N.Y.S.3d 208 ).
The defendant's contention that he was not adequately advised of his Boykin rights (see Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 ) is unpreserved for appellate review, since the defendant did not move for leave to withdraw his plea of guilty, although he had ample time to do so (see People v. Conceicao, 26 N.Y.3d 375, 23 N.Y.S.3d 124, 44 N.E.3d 199 ; People v. Sirico, 135 A.D.3d 19, 22, 18 N.Y.S.3d 430 ). In any event, that contention is without merit.
The defendant's valid waiver of his right to appeal precludes review of his excessive sentence claim (see People v. Lopez, 6 N.Y.3d at 256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ).
The defendant's remaining contentions are without merit.
RIVERA, J.P., LEVENTHAL, HINDS–RADIX and BRATHWAITE NELSON, JJ., concur.