| People v Taveras |
| 2014 NY Slip Op 08465 [123 AD3d 745] |
| December 3, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Edwin Taveras, Appellant. |
Christopher J. Cassar, P.C., Huntington, N.Y. (Richard Toscani of counsel), forappellant.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Glenn Green of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (R.Doyle, J., at plea; Toomey, J., at sentence), rendered July 16, 2012, convicting him ofattempted criminal sale of a controlled substance in the third degree, upon his plea ofguilty, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant was indicted, inter alia, for criminal sale of a controlled substance inthe third degree. He pleaded guilty to attempted criminal sale of a controlled substance inthe third degree in satisfaction of the indictment, and received a promised sentence.
During the plea proceeding, the County Court advised the defendant that "by takingthis plea you may be subject to deportation." When asked if his attorney advised him ofthe "possibility" of deportation, the defendant replied "yes."
Prior to sentencing, the defendant obtained new counsel, who moved to withdraw theplea on the ground that his former counsel was ineffective for failing to advise him thathe was subject to "automatic deportation" as a result of his conviction. The County Courtdenied the motion on the ground that the defendant was advised during the pleaproceeding that his plea of guilty "may" have an effect on his immigration status, andwhen asked if his attorney advised him of the "possibility" of deportation, he answered"yes."
The County Court satisfied the due process requirements set forth in People v Peque (22 NY3d168, 176 [2013]), that a defendant who is not an American citizen must be advisedthat "he or she may be deported as a consequence of a guilty plea to a felony." Thestatement that the defendant's conviction "may" subject him to deportation was notmisleading, but rather, served "to put [the defendant] on notice that his guilty plea hadpotential immigration consequences, and provided an opportunity to pursue thoseconsequences more fully with his attorney or with an immigration specialist" (Zhangv United States, 506 F3d 162, 169 [2d Cir 2007]).
[*2] With respect to whether the defendant received theeffective assistance of counsel (see Padilla v Kentucky, 559 US 356, 367-369[2010]), the defendant's claims are conclusory, and "predicated on hearsay matters andfacts not found in the record on appeal" (People v Haffiz, 19 NY3d 883, 885 [2012]). Accordingly,that claim "should be raised in a postconviction application under CPL article 440, wherethe basis of the claim may be fully developed" (id. at 885). Rivera, J.P.,Hinds-Radix, Duffy and LaSalle, JJ., concur.