Opinion
2018–03594 Ind. No. 206/15
05-25-2022
The PEOPLE, etc., respondent, v. Rashid TANVEER, appellant.
Mark J. Fonte, Staten Island, NY (Gary R. DeFilippo of counsel), for appellant. Michael E. McMahon, District Attorney, Staten Island, NY (Morrie E. Kleinbart and Thomas B. Litsky of counsel), for respondent.
Mark J. Fonte, Staten Island, NY (Gary R. DeFilippo of counsel), for appellant.
Michael E. McMahon, District Attorney, Staten Island, NY (Morrie E. Kleinbart and Thomas B. Litsky of counsel), for respondent.
VALERIE BRATHWAITE NELSON, J.P., REINALDO E. RIVERA, PAUL WOOTEN, JOSEPH A. ZAYAS, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Richmond County (William Garnett, J.), rendered June 21, 2017, convicting him of attempted sexual abuse in the first degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant failed to preserve for appellate review his contention that the Supreme Court did not adequately advise him of the immigration consequences of his plea. The defendant did not raise the issue or move to withdraw his plea, despite indicating on the record that he was aware that he could be deported as a result of pleading guilty (see People v. Pastor, 28 N.Y.3d 1089, 1091, 45 N.Y.S.3d 317, 68 N.E.3d 42 ; People v. Peque, 22 N.Y.3d 168, 183, 980 N.Y.S.2d 280, 3 N.E.3d 617 ; People v. Ramsood, 161 A.D.3d 1198, 1199, 74 N.Y.S.3d 507 ). Contrary to the defendant's contention, the exception to the preservation requirement (see People v. Pastor, 28 N.Y.3d at 1091, 45 N.Y.S.3d 317, 68 N.E.3d 42 ; People v. Williams, 27 N.Y.3d 212, 221–222, 32 N.Y.S.3d 17, 51 N.E.3d 528 ) is inapplicable here, as the plea colloquy, along with the defendant's acknowledgment that his attorney had discussed with him the possible immigration consequences of his plea, were sufficient to provide the defendant the opportunity to discover any error (see People v. Mejia, 195 A.D.3d 1043, 1045, 150 N.Y.S.3d 731 ; cf. People v. Ulanov, 188 A.D.3d 1271, 1271, 132 N.Y.S.3d 812 ). In any event, this contention is without merit (see People v. Peque, 22 N.Y.3d at 197, 980 N.Y.S.2d 280, 3 N.E.3d 617 ; People v. Ruiz–Solano, 188 A.D.3d 1267, 1267, 132 N.Y.S.3d 828 ).
The defendant further argues that he received ineffective assistance of counsel because his attorney did not sufficiently advise him that his guilty plea would result in mandatory deportation. This contention is based, in part, on matter appearing on the record and, in part, on matter outside the record, and thus constitutes a "mixed claim of ineffective assistance" ( People v. Maxwell, 89 A.D.3d 1108, 1109, 933 N.Y.S.2d 386 ; see People v. Evans, 16 N.Y.3d 571, 575 n. 2, 925 N.Y.S.2d 366, 949 N.E.2d 457 ). Since the defendant's claim of ineffective assistance of counsel cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety, and we decline to review the claim on this direct appeal (see People v. Freeman, 93 A.D.3d 805, 806, 940 N.Y.S.2d 314 ; People v. Maxwell, 89 A.D.3d at 1109, 933 N.Y.S.2d 386 ).
BRATHWAITE NELSON, J.P., RIVERA, WOOTEN and ZAYAS, JJ., concur.