| People v Peque |
| 2011 NY Slip Op 06950 [88 AD3d 1024] |
| October 6, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Juan JosePeque, Also Known as Juan Jose Peque Sicajan, Appellant. |
—[*1] Weeden A. Wetmore, District Attorney, Elmira (Susan Rider-Ulacco of counsel), forrespondent.
Malone Jr., J. Appeal from a judgment of the County Court of Chemung County (Hayden,J.), rendered November 6, 2009, convicting defendant upon his plea of guilty of the crime of rapein the first degree.
Defendant, an illegal immigrant who was temporarily residing in a hotel located in the Townof Chemung, Chemung County, forced a woman to have sexual intercourse with him in abathroom stall of a bar located in the hotel. Defendant was charged by indictment with one countof rape in the first degree and pleaded guilty to the charge pursuant to a negotiated pleaagreement whereby he was promised a sentence of 17½ years in prison followed by fiveyears of postrelease supervision. County Court sentenced defendant as promised and defendantnow appeals.
Defendant argues that his plea was not knowing, voluntary and intelligent because neitherCounty Court nor defense counsel advised him that he would be subject to deportation upon hisconviction. Inasmuch as a defendant's potential for deportation is considered a collateralconsequence of a criminal conviction, County Court's failure to advise defendant of suchconsequence does not render the plea invalid (see CPL 220.50 [7]; People v Ford,86 NY2d [*2]397, 405 [1995]; People v Romero, 82 AD3d 1013[2011]; see also People v Harnett,16 NY3d 200, 205-206 [2011]). County Court engaged in a thorough plea colloquy whereinit adequately advised defendant of the rights he was giving up by pleading guilty, ascertained thatdefendant understood these rights and engaged in a satisfactory factual allocution. Accordingly,we find that defendant's plea was knowing, voluntary and intelligent (see People v Johnson, 21 AD3d1149, 1149 [2005]; People vWard, 2 AD3d 1219, 1219 [2003], lv denied 2 NY3d 808 [2004]).
While counsel's failure to accurately and adequately advise a defendant of the immigrationconsequences of a plea may constitute ineffective assistance of counsel (see Padilla vKentucky, 559 US —, —, 130 S Ct 1473, 1483-1486 [2010]; People v McDonald, 1 NY3d 109,115 [2003]; People v Argueta, 46AD3d 46, 49-50 [2007], lv dismissed 10 NY3d 761 [2008]), we are unable to reviewdefendant's claim in this regard as it involves matters largely outside of the record and is moreappropriately addressed by a CPL article 440 motion (see People v Lafoe, 75 AD3d 663, 664 [2010], lv denied 15NY3d 953 [2010]; People v Corbett,52 AD3d 1023, 1024 [2008]). Finally, we find no extraordinary circumstances warrantingreduction of the negotiated sentence (see People v Johnson, 21 AD3d at 1149-1150; People v Horace, 8 AD3d 752, 752[2004], lv denied 3 NY3d 675 [2004]).
Rose, J.P., Kavanagh, Stein and McCarthy, JJ., concur. Ordered that the judgment isaffirmed.