Opinion
7390 Ind. 856/12
10-18-2018
The PEOPLE of the State of New York, Respondent, v. Mor NDIAYE, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Robin Nichinsky of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Christine M. DiDomenico of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Robin Nichinsky of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Christine M. DiDomenico of counsel), for respondent.
Richter, J.P., Manzanet–Daniels, Kapnick, Kern, Moulton, JJ.
Judgment, Supreme Court, New York County (Renee A. White, J.), rendered October 16, 2012, as amended October 24, 2012, convicting defendant, upon his guilty plea, of criminal possession of stolen property in the fifth degree, and sentencing him to a term of 11 months, unanimously affirmed.
Defendant has not established that the narrow exception to the preservation requirement applies to his Peque claim (see People v. Peque, 22 N.Y.3d 168, 980 N.Y.S.2d 280, 3 N.E.3d 617 [2013], cert denied 574 U.S. ––––, 135 S.Ct. 90, 190 L.Ed.2d 75 [2014] ). Review of defendant's unpreserved claim in the interest of justice is unwarranted.
Defendant claims that his counsel provided him with ineffective assistance regarding the immigration consequences of his plea (see Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 [2010] ). This claim involves matters not reflected in, or fully explained by, the record, which includes an ambiguous statement by counsel on the subject of deportation. Accordingly, this claim is unreviewable without the benefit of a fuller record generated by way of a CPL 440.10 motion (see People v. Pastor, 28 N.Y.3d 1089, 1091, 45 N.Y.S.3d 317, 68 N.E.3d 42 [2016] ; Peque, 22 N.Y.3d at 202–203, 980 N.Y.S.2d 280, 3 N.E.3d 617 ).