People v Santer

2006 NY Slip Op 04350

Decided on June 6, 2006

Appellate Division, First Department

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 6, 2006
Tom, J.P., Marlow, Gonzalez, Sweeny, Catterson, JJ.
8673Ind. 6961/03






Robert S. Dean, Center for Appellate Litigation, New York
(Gayle Pollack of counsel), for appellant.
Robert M. Morgenthau, District Attorney, New York (Vincent
Rivellese of counsel), for respondent.

Judgment, Supreme Court, New York County (Brenda Soloff, J.), rendered March 10, 2004, convicting defendant, upon his plea of guilty, of tampering with physical evidence in the third degree, and sentencing him, as a second felony offender, to a term of 1½ to 3 years, unanimously affirmed.

Since defendant's ineffective assistance of counsel claim turns on matters outside the record, including counsel's specific advice to defendant concerning the immigration consequences of his plea, it is not reviewable on direct appeal and would require a further record to be developed by way of a CPL 440.10 motion (see People v Love, 57 NY2d 998 [1982]). On the existing record, to the extent it permits review, we find that defendant has
failed to demonstrate that counsel provided improper advice (see People v Ford, 86 NY2d 397, 404 [1995]; compare People v McDonald, 1 NY3d 109 [2003]).

We perceive no basis upon which to reduce defendant's conviction to a lesser offense (see People v Velasquez, 25 AD3d 501 [2006]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 6, 2006

CLERK