Opinion
110181
11-15-2018
The PEOPLE of the State of New York, Respondent, v. Wahaj TARIQ, Also Known as Hodgee, Appellant.
Danielle Neroni Reilly, Albany, for appellant. Joel E. Abelove, District Attorney, Troy (Jacob B. Sher of counsel), for respondent.
Danielle Neroni Reilly, Albany, for appellant.
Joel E. Abelove, District Attorney, Troy (Jacob B. Sher of counsel), for respondent.
Before: Lynch, J.P., Clark, Mulvey, Rumsey and Pritzker, JJ.
MEMORANDUM AND ORDER
Pritzker, J.
In satisfaction of a nine-count indictment, defendant, who is not a United States citizen, pleaded guilty to criminal possession of a controlled substance in the third degree and waived his right to appeal. After defendant admitted to the second felony offender statement filed, County Court sentenced defendant as a second felony offender, in accordance with the terms of the plea agreement, to a prison term of 4 ½ years followed by three years of postrelease supervision. Defendant appeals.
Defendant contends that, because he was not adequately informed of the deportation consequences of his plea, the plea was not voluntarily entered and he received the ineffective assistance of counsel. Defendant's contentions, however, are unpreserved for our review as the record does not reflect that he made an appropriate postallocution motion, nor did he make any statement during the plea colloquy that would trigger the exception to the preservation requirement (see 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] ). In any event, were we to consider the claims, we would find that his contentions are belied by the record. The record reflects that County Court informed defendant of the likely deportation consequences resulting from his plea, and defendant acknowledged that he had sufficient opportunity to discuss the deportation consequences with his attorney and understood that entering the plea could result in his deportation (see People v. Thomas , 153 A.D.3d at 1446, 61 N.Y.S.3d 701 ). To the extent that defendant asserts that defense counsel did not adequately or properly advise him of the immigration consequences, such claim concerns matters not appearing on the face of the record and, as such, is more appropriately pursued by means of a CPL article 440 motion (see People v. Balbuena , 123 A.D.3d at 1386, 999 N.Y.S.2d 600 ).
Defendant also asserts that he was improperly sentenced as a second felony offender because the prior felony conviction set forth in the second felony offender statement was inaccurate. Any challenge to the accuracy of the statement filed pursuant to CPL 400.21 is waived due to defendant's failure to controvert the allegations at sentencing (see People v. Johnson , 133 A.D.3d 1028, 1029, 20 N.Y.S.3d 210 [2015] ; People v. Atkinson , 58 A.D.3d 943, 944, 871 N.Y.S.2d 479 [2009] ). In any event, were we to consider the issue, we would find it to be without merit. Defendant pleaded guilty with the understanding that he would be sentenced as a second felony offender, was given notice of the prior felony conviction and admitted — and does not otherwise dispute — that he is, in fact, a second felony offender. As there was substantial compliance with CPL 400.21, we would find any inaccuracy in the prior felony statement with regard to the degree of the prior felony conviction reflected in the CPL 400.21 statement filed to be harmless error (see People v. Atkinson , 58 A.D.3d at 944, 871 N.Y.S.2d 479 ; People v. Pierre , 8 A.D.3d 904, 906–907, 780 N.Y.S.2d 389 [2004], lv denied 3 N.Y.3d 710, 785 N.Y.S.2d 38, 818 N.E.2d 680 [2004] ; People v. Mann , 258 A.D.2d 738, 739, 686 N.Y.S.2d 122 [1999], lv denied 93 N.Y.2d 900, 689 N.Y.S.2d 712, 711 N.E.2d 988 [1999] ).
Lynch, J.P., Clark, Mulvey and Rumsey, JJ., concur.
ORDERED that the judgment is affirmed.