Opinion
No. 570670/15
04-13-2023
The People of the State of New York, Respondent, v. Eduardo Pereira, Defendant-Appellant.
Unpublished Opinion
PRESENT: Brigantti, J.P., Tisch, James, JJ.
PER CURIAM.
Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Richard M. Weinberg, J.), rendered May 19, 2014, convicting defendant, upon a plea of guilty, of criminal possession of a controlled substance in the seventh degree, and imposing sentence.
Judgment of conviction (Richard M. Weinberg, J.), rendered May 19, 2014, affirmed.
Defendant, by pleading guilty, forfeited any claim that the court did not properly convert the felony complaint into a misdemeanor complaint pursuant to CPL 180.50(3)(a)(iii) (see People v Hunter, 5 N.Y.3d 750, 751 [2005]; People v Stovall, 61 Misc.3d 127 [A], 2018 NY Slip Op 51338[U] [App Term, 1st Dept 2018], lv denied 32 N.Y.3d 1115 [2018]).
Defendant's claim that counsel provided ineffective assistance regarding the immigration consequences of the plea (see Padilla v Kentucky, 559 U.S. 356 [2010]) is unreviewable on direct appeal because it involves matters not reflected in the record regarding the full extent of counsel's immigration advice, and thus requires a CPL 440.10 motion (see People v Pastor, 28 N.Y.3d 1089, 1091 [2016]; People v Mann, 175 A.D.3d 1204 [2019], lv denied 34 N.Y.3d 1017 [2019]).
In any event, even assuming that counsel misadvised defendant of the immigration consequences of the guilty plea, the proper remedy is to hold the appeal in abeyance to afford defendant the opportunity to move to vacate the plea upon a showing that there is a reasonable probability that defendant would not have pleaded guilty had defendant been made aware of the deportation consequences of the plea (see e.g. People v Acosta, 202 A.D.3d 447 [2022]; People v Johnson, 165 A.D.3d 556 [2018]). However, the only relief defendant requests is dismissal of the accusatory instruments rather than vacatur of the plea, and defendant expressly requests that this Court affirm the conviction if it does not grant a dismissal. Since it cannot be said that no penological purpose would be served by remanding the matter to Criminal Court, dismissal is not warranted and we affirm on this basis as well (see People v Gnoka, 76 Misc.3d 130 [A], 2022 NY Slip Op 50887[U] [App Term, 1st Dept 2022]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur I concur I concur