Opinion
109960
12-12-2019
The PEOPLE of the State of New York, Respondent, v. Suleiman BADMAXX, Appellant.
Craig Meyerson, Peru, for appellant. J. Anthony Jordan, District Attorney, Fort Edward, for respondent.
Craig Meyerson, Peru, for appellant.
J. Anthony Jordan, District Attorney, Fort Edward, for respondent.
Before: Garry, P.J., Egan Jr., Lynch and Aarons, JJ.
MEMORANDUM AND ORDER
Aarons, J. Appeal from a judgment of the County Court of Washington County (McKeighan, J.), rendered January 22, 2016, convicting defendant upon his plea of guilty of the crime of criminal sale of a controlled substance in the third degree.
In satisfaction of a four-count indictment, defendant pleaded guilty to criminal sale of a controlled substance in the third degree and waived his right to appeal. In accordance with the terms of the plea agreement, he was sentenced, as a second felony offender, to a prison term of six years, followed by three years of postrelease supervision. Defendant appeals.
Regardless of the validity of defendant's appeal waiver, defendant's challenge to the voluntariness of his guilty plea, premised upon County Court's alleged failure to adequately advise him of the deportation consequences of his plea (see generally CPL 220.50[7] ), is unpreserved for our review in the absence of an appropriate postallocution motion (see People v. Carroll, 172 A.D.3d 1821, 1821, 99 N.Y.S.3d 520 [2019], lv denied 34 N.Y.3d 929, 109 N.Y.S.3d 743, 133 N.E.3d 448 [2019] ; People v. Tariq, 166 A.D.3d 1211, 1211–1212, 88 N.Y.S.3d 287 [2018], lv denied 32 N.Y.3d 1178, 97 N.Y.S.3d 641, 121 N.E.3d 269 [2019] ; People v. Thomas, 153 A.D.3d 1445, 1446, 61 N.Y.S.3d 701 [2017], lv denied 30 N.Y.3d 1064, 71 N.Y.S.3d 14, 94 N.E.3d 496 [2017] ; People v. Balbuena, 123 A.D.3d 1384, 1385, 999 N.Y.S.2d 600 [2014] ). Contrary to defendant's assertion, the exception to the preservation doctrine is not applicable as he knew about the possibility of deportation throughout the proceedings (see People v. Peque, 22 N.Y.3d 168, 183, 980 N.Y.S.2d 280, 3 N.E.3d 617 [2013] ) and did not make any statements during the plea colloquy or at sentencing that cast significant doubt upon his guilt or otherwise called into question the voluntariness of his plea (see People v. Pastor, 28 N.Y.3d 1089, 1090–1091, 45 N.Y.S.3d 317, 68 N.E.3d 42 [2016] ; People v. Lopez, 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ; People v. Mathayo, 155 A.D.3d 1090, 1091, 62 N.Y.S.3d 825 [2017], lv denied 30 N.Y.3d 1107, 77 N.Y.S.3d 6, 101 N.E.3d 392 [2018] ). Defendant's ineffective assistance of counsel claim, to the extent that it impacts the voluntariness of his plea, is similarly unpreserved (see People v. Walker, 166 A.D.3d 1393, 1394, 86 N.Y.S.3d 920 [2018] ). To the extent that defendant's ineffective assistance of counsel claim involves matters outside the record, it is more properly the subject of a CPL article 440 motion (see People v. Peque, 22 N.Y.3d at 202–203, 980 N.Y.S.2d 280, 3 N.E.3d 617 ; People v. Tariq, 166 A.D.3d at 1212, 88 N.Y.S.3d 287 ; People v. Balbuena, 123 A.D.3d at 1386, 999 N.Y.S.2d 600 ). Accordingly, the judgment of conviction is affirmed.
Garry, P.J., Egan Jr. and Lynch, JJ., concur.
ORDERED that the judgment is affirmed.