| People v Drammeh |
| 2012 NY Slip Op 07312 [100 AD3d 650] |
| November 7, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Muhammad Drammeh, Also Known as Kevin Smith,Appellant. |
—[*1] Francis D. Phillips II, District Attorney, Goshen, N.Y. (Elizabeth L. Guinup and Andrew R.Kass of counsel), for appellant.
Appeal by the defendant from a judgment of the County Court, Orange County (DeRosa, J.),rendered June 15, 2011, convicting him of robbery in the third degree, upon his plea of guilty,and imposing sentence.
Ordered that the judgment is affirmed.
The defendant knowingly, intelligently, and voluntarily waived his right to appeal (see People v Lopez, 6 NY3d 248,256-257 [2006]; cf. People vBradshaw, 18 NY3d 257, 264-267 [2011]). The defendant's valid waiver of his right toappeal precludes review of his contentions that his attorney's failure to pursue youthful offendertreatment rendered his assistance ineffective (see People v Rudolph, 85 AD3d 1492 [2011], lv granted 19NY3d 977 [2012]) and that the County Court improvidently exercised its discretion in failing togrant him youthful offender treatment (see People v Franko, 98 AD3d 525 [2012]; People v Holland, 91 AD3d 672[2012]; People v Joyce, 91 AD3d986 [2012]; People v Simms,89 AD3d 1043 [2011]).
Review of the defendant's contention that he was deprived of the effective assistance ofcounsel because his attorney failed to advise him of the immigration consequences of his plea inaccordance with Padilla v Kentucky (559 US —, 130 S Ct 1473 [2010]) is notbarred by his appeal waiver because it affects the voluntariness of his plea (see People v Achouatte, 91 AD3d1028, 1029 [2012], cert denied 568 US —, 133 S Ct 216 [2012]; see also People v Young, 97 AD3d 771 [2012]; People v Fenty, 96 AD3d 1075,1076 [2012], lv denied 19 NY3d 1025 [2012]). However, since the record does notconclusively demonstrate that the defendant's attorney failed to inform him of the immigrationconsequences of his plea, the defendant's claim cannot be resolved without reference to mattersoutside the record. Accordingly, a CPL 440.10 proceeding is the appropriate forum for reviewingthe defendant's ineffective assistance of counsel claim in its entirety (see People v Salmon, 97 AD3d608, 609 [2012]; see also People vHaffiz, 19 NY3d 883, 885 [2012]; People v Crooks, 98 AD3d 630 [2012]; People v Miller, 97 AD3d 607,608 [2012]; People v Peque, 88AD3d 1024, 1025 [2011], lv granted 19 NY3d 976 [2012]; People v Griffith, 78 AD3d 1194,1196 [2010]).[*2]
The defendant's additional contention that his plea ofguilty was involuntary because the County Court failed to advise him of the immigrationconsequences of his plea is unpreserved for appellate review (see People v Toxey, 86NY2d 725, 726 [1995]; People v Lopez, 71 NY2d 662, 665 [1988]; People v Rosario, 93 AD3d 605[2012]; People v Ramnaraine, 92AD3d 809 [2012]; People vDiaz, 92 AD3d 413 [2012], lv granted 19 NY3d 972 [2012]; People v Vasquez, 85 AD3d 1068[2011]; People v Sandher, 12 AD3d464, 465 [2004]). In any event, the County Court's failure to advise the defendant of theimmigration consequences of his plea did not render his plea involuntary (see CPL220.50 [7]; People v Ramnaraine,92 AD3d 809 [2012]; People vVasquez, 85 AD3d 1068 [2011]; see also People v Carty, 96 AD3d 1093, 1097 [2012]; People vRosario, 93 AD3d at 605; People v Diaz, 92 AD3d at 413-414). Eng, P.J., Skelos,Lott and Cohen, JJ., concur.