| People v Thomas |
| 2011 NY Slip Op 08385 [89 AD3d 964] |
| November 15, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v MichaelThomas, Also Known as Neil Adams, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J.Caferri, and Jennifer Hagan of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Buchter, J.),rendered December 16, 2008, convicting him of attempted criminal sale of a controlled substance in thethird degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant moved to withdraw his plea of guilty on the basis that prior to entering his plea, hisattorney incorrectly advised him about the possible immigration consequences of pleading guilty, whichdeprived him of the effective assistance of counsel and rendered his plea involuntary. After affording thedefendant a sufficient opportunity to present his arguments for withdrawal (see People v Baret, 11 NY3d 31, 33[2008]; People v Frederick, 45 NY2d 520, 524 [1978]; People v Griffith, 78 AD3d 1194, 1195 [2010]), the Supreme Courtdenied the defendant's motion, finding that the defendant's allegations were not credible. In this regard,the Supreme Court noted, among other things, that during the period between the plea and sentencing,the defendant absconded to Jamaica, West Indies, and had a certificate produced in court attesting tohis death, which resulted in the case against him being abated. Once apprehended, almost 16 yearslater, the defendant falsely told the Department of Probation that he had never pleaded guilty, but thathis attorney pleaded guilty on his behalf. Since the Supreme Court's credibility determination issupported by the record, it will not be disturbed (see People v Sparcino, 78 AD3d 1508, 1509 [2010]; People v Montgomery, 63 AD3d1635, 1636 [2009]). Therefore, contrary to the defendant's contention, raised in both his mainbrief and his pro se supplemental brief, his motion to withdraw his plea of guilty was properly denied.
On appeal, the defendant further contends that his attorney did not advise him, at all, of the possibleimmigration consequences of pleading guilty. This contention, however, is based on matter dehors therecord (see People v Griffith, 78 AD3d at 1195). In addition, as the defendant's motion towithdraw his plea of guilty was not made on this basis, his contention is unpreserved for appellatereview (People v Rivera, 66 AD3d409 [2009]).
The Supreme Court's failure to advise the defendant of the possible immigration [*2]consequences of pleading guilty did not render his plea involuntary(see CPL 220.50 [7]; People v Ford, 86 NY2d 397, 403 [1995]; People v Romero, 82 AD3d 1013[2011]; cf. Padilla v Kentucky, 559 US —, 130 S Ct 1473 [2010]).
The remaining contention raised in the defendant's main brief has been rendered academic by ourdetermination.
The defendant's contention, raised in his pro se supplemental brief, that he was deprived of theeffective assistance of counsel based on his attorney's alleged failure to conduct an investigation ordiscuss the case with him is based on matter dehors the record (see People v Sharma, 36 AD3d 723 [2007]).
The defendant's challenge, raised in his pro se supplemental brief, to the factual sufficiency of hisplea allocution is unpreserved for appellate review, and we decline to review it in the exercise of ourinterest of justice jurisdiction (see People v Martinez, 245 AD2d 177 [1997]).
The defendant's remaining contention, raised in his pro se supplemental brief, is without merit.Florio, J.P., Dickerson, Chambers and Cohen, JJ., concur.