| People v Pierre |
| 2011 NY Slip Op 00028 [80 AD3d 441] |
| January 4, 2011)<> |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v JosuePierre, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Craig A. Ascher of counsel), forrespondent.
Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered December 4, 2008,convicting defendant, upon his plea of guilty, of criminal sale of a controlled substance in the seconddegree, and sentencing him, as a second felony offender, to a term of nine years, unanimously affirmed.
Defendant's plea was not rendered involuntary by the fact that the court did not advise him that hisconviction could be used to enhance his sentence in his then-pending federal prosecution, and the courtproperly denied defendant's motion to withdraw his plea on that ground. The record establishes thevoluntariness of the plea (see People v Fiumefreddo, 82 NY2d 536, 543 [1993]). In acceptinga guilty plea, the court is only obligated to advise a defendant of direct rather than collateralconsequences (People v Catu, 4 NY3d242, 244-245 [2005]). Here, an enhanced sentence was a collateral consequence, at most.Generally, an enhanced sentence resulting from a subsequent conviction is a collateral consequence of aguilty plea (see People v Lancaster, 260 AD2d 660, 661 [1999]). Although defendant'sfederal case was already pending, at the time of the state plea, it was not known whether he wouldeven be convicted of any federal charges. Moreover, although defendant characterizes his stateconviction as "presumptively" enhancing his federal sentence, it appears that any enhancement wasentirely discretionary. In any event, as defendant concedes, the state conviction was not actually used toenhance the federal sentence. Accordingly, there was no "consequence." Finally, we also note that thefederal sentence was shorter than, and concurrent with, the state sentence.
Defendant's argument that his counsel provided ineffective assistance by not informing him aboutthe possibility that his plea might affect his sentence in the federal prosecution is not reviewable ondirect appeal, since, without development of the record by way of a CPL 440.10 motion, it cannot bedetermined what advice, if any, his counsel had provided on this subject (see People v Love,57 NY2d 998 [1982]). On the existing record, to the extent it permits review, we find that regardlessof what advice counsel should have provided concerning the impact of the plea on the federal case,defendant has not shown any prejudice (see Hill v Lockhart, 474 US 52, 59 [1985]).Concur—Tom, J.P., Moskowitz, Freedman, Richter and Manzanet-Daniels, JJ.