| People v Chelley |
| 2014 NY Slip Op 05749 [120 AD3d 987] |
| August 8, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vBangaly D. Chelley, Also Known as Africa, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert B. Hallborg, Jr., of counsel),for defendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (M. William Boller,A.J.), rendered November 13, 2012. The judgment convicted defendant, upon his plea ofguilty, of criminal possession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant, a noncitizen, appeals from a judgment convicting him,upon his plea of guilty, of criminal possession of a weapon in the second degree (PenalLaw § 265.03 [3]; see § 265.02 [1]). Defendantimplicitly contends that the failure of Supreme Court to advise him that he could besubject to deportation if he pleaded guilty renders his plea involuntary (see People v Peque, 22 NY3d168, 197 [2013]). We conclude that defendant's contention is not preserved for ourreview (see CPL 470.05 [2]), and that, under the circumstances of this case, thenarrow exception to the preservation doctrine does not apply (cf. Peque, 22NY3d at 182-183). It is undisputed that the presentence report stated that there was animmigration detainer on file at the Erie County Holding Center and that it was expectedthat defendant would face deportation proceedings when released from incarceration.Thus, defendant failed to establish that he "did not know about the possibility ofdeportation during the . . . sentencing proceeding[ ], [and thus that] he hadno opportunity to withdraw his plea based on the court's failure to apprise him ofpotential deportation" (id. at 183; see generally CPL 220.60 [3]; People v Murray, 15 NY3d725, 726-727 [2010]). Although the waiver of the right to appeal does notencompass defendant's contention that the bargained-for sentence is unduly harsh andsevere (see People vMaracle, 19 NY3d 925, 928 [2012]), we nevertheless reject that contention.Present—Scudder, P.J., Smith, Peradotto, Sconiers and Whalen, JJ.