| People v Rupnarain |
| 2014 NY Slip Op 09064 [123 AD3d 1372] |
| December 31, 2014 |
| Appellate Division, Third Department |
[*1](December 31, 2014)
| The People of the State of New York, Respondent, vRajiv Rupnarain, Appellant. |
David Perino, Albany, for appellant.
Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Schenectady County(Drago, J.), rendered January 11, 2011, convicting defendant upon his plea of guilty ofthe crimes of rape in the third degree and criminal contempt in the second degree.
Defendant, who was born in Guyana, waived indictment and pleaded guilty to asuperior court information charging him with rape in the third degree and criminalcontempt in the second degree and waived his right to appeal. Thereafter, defendantretained new counsel, who moved to withdraw the plea based upon assigned counsel'sadmitted failure to advise defendant of the deportation consequences thereof. Followingan evidentiary hearing, County Court denied the motion and sentenced defendant to theagreed-upon prison term of 1
We affirm. To the extent that defendant's ineffective assistance of counsel claimimpacts upon the voluntariness of his plea, such claim survives defendant's unchallengedwaiver of the right to appeal and, further, is preserved for our review by defendant'smotion to withdraw his plea based upon assigned counsel's failure to apprise him of thedeportation consequences associated therewith as required by Padilla v Kentucky(559 US 356, 366-369 [2010]). As to the merits, assigned counsel's undisputed failure toadvise defendant of the deportation consequences of his plea indeed constituted deficientrepresentation (see id. at 370-371); however, a defendant seeking to withdraw hisor her plea upon this ground "must show that there is a reasonable [*2]probability that, but for counsel's errors, he [or she] wouldnot have pleaded guilty and would have insisted on going to trial" (People v Hernandez, 22 NY3d972, 975 [2013], cert denied 572 US &mdash, 134 S Ct 1900 [2014][internal quotation marks and citation omitted]; accord People v Galan, 116 AD3d 787, 788-789[2014]).
Here, defendant readily acknowledged at the underlying hearing that he had sexualintercourse with the underage victim and, further, that his signed, written statement tothat effect and the corresponding DNA evidence constituted "strong evidence" of hisguilt. Defendant also made clear that he regarded "serving time" in prison to be a "biggerpunishment than being deported," and the hearing testimony reflects that defendantelected to plead guilty in an effort to receive a more favorable sentence. In light ofdefendant's own testimony, we do not find that there was a reasonable probability that,but for assigned counsel's error, defendant would have insisted upon going to trial.Accordingly, County Court properly denied defendant's motion to withdraw hisplea.
To the extent that defendant contends that retained counsel failed to provide himwith meaningful representation during the course of the Padilla hearing, wedisagree. Finally, any arguments relative to retained counsel's representation at thesubsequent hearing to determine defendant's risk level classification under the SexOffender Registration Act (see Correction Law art 6-C) are not reviewable in thecontext of defendant's direct appeal from the judgment of conviction (cf. People v Smith, 15 NY3d669, 673 [2010]; see Correction Law § 168-d [3]).[FN*] Defendant's remainingcontentions, to the extent not specifically addressed, have been examined and found to belacking in merit.
Peters, P.J., Stein, Garry and Devine, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Defendant's challenge tohis risk level classification is the subject of a separate appeal (People vRupnarain, 123 AD3d 1372 [2014] [decided herewith]).