Opinion
296 KA 20-01163
03-26-2021
MATTHEW K. BOROWSKI, BUFFALO, FOR DEFENDANT-APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. LOWRY OF COUNSEL), FOR RESPONDENT.
MATTHEW K. BOROWSKI, BUFFALO, FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (ASHLEY R. LOWRY OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, LINDLEY, TROUTMAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of endangering the welfare of a child ( Penal Law § 260.10 [1] ), defendant contends that defense counsel failed to advise him of the immigration consequences of his plea and that he was thereby denied effective assistance of counsel. On this record, however, it is unclear what advice defendant received from defense counsel. Defendant's contention therefore involves allegations of deficient performance of counsel that do not appear on the record, and thus it must be raised by way of a motion pursuant to CPL 440.10 (see People v. Rajab , 133 A.D.3d 1241, 1242, 20 N.Y.S.3d 772 [4th Dept. 2015], lv denied 27 N.Y.3d 1154, 39 N.Y.S.3d 388, 62 N.E.3d 128 [2016] ; see generally People v. Gomez , 186 A.D.3d 422, 423, 129 N.Y.S.3d 60 [1st Dept. 2020] ).