| People v Ceni |
| 2014 NY Slip Op 08731 [123 AD3d 506] |
| December 11, 2014 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Astrit Ceni, Appellant. |
Labe M. Richman, New York, for appellant.
Robert T. Johnson, District Attorney, Bronx (Orrie A. Levy of counsel), forrespondent.
Order, Supreme Court, Bronx County (Dominic R. Massaro, J.), entered on or aboutJanuary 31, 2014, which denied defendant's CPL 440.10 motion to vacate a 1998judgment of conviction, unanimously affirmed.
The court properly denied defendant's 440 motion. The only branch of the motionthat arguably may be addressed under CPL article 440, rather than on direct appeal, isdefendant's ineffective assistance of counsel claim. However, the gist of this claim isdefendant's assertion that his attorney never told him that he was pleading guilty to thedepraved indifference element of the crime of reckless endangerment, leading to negativeimmigration consequences. Thus, defendant has not set forth any cognizableineffectiveness claims that are independent of Padilla v Kentucky (559 US 356[2010]), which was decided after defendant's conviction became final, and which has noretroactive application to this appeal (see Chaidez v United States, 568 US—, 133 S Ct 1103 [2013]; People v Baret, 23 NY3d 777 [2014]).
All of defendant's remaining arguments, including his claims that the courtmisadvised him of the immigration consequences of his plea, that the factual portion ofthe plea allocution was deficient, and that the Supreme Court Information wasjurisdictionally defective, are barred by CPL 440.10 (2) (c). In each instance, the basisfor the argument "is clear from the face of the record and therefore not properly raised ina CPL article 440 motion" (People v Louree, 8 NY3d 541, 546 [2007]). There is "noreason to distinguish between issues of law and issues that seek to invoke this Court'sinterest of justice jurisdiction" (People v Pedraza, 56 AD3d 390, 391 [1st Dept 2008],lv denied 12 NY3d 761 [2009]). As to each claim, the transcript speaks for itself,and there is no merit to defendant's assertion that some of these claims require furtherdevelopment of the record.
Defendant did not appeal from the underlying 1998 conviction. Accordingly, therewas no appellate review, "owing to the defendant's unjustifiable failure to take or perfectan appeal" (CPL 440.10 [2] [c]). Defendant's claim that he was not informed of his rightto appeal is refuted by the record, including the court worksheet, as well as thepresumption of regularity that attaches to judicial proceedings (see People v Quinones, 112AD3d 411 [1st Dept 2013], lv denied 22 NY3d 1158 [2014]). Defendant'sfailure to appeal was "unjustifiable" within the meaning of the statute (see People v Stewart, 16 NY3d839, 841 [2011]), and defendant has [*2]presentednothing to the contrary. Moreover, defendant's arguments concerning the circumstancesof his failure to appeal are similar to arguments raised on defendant's unsuccessful coramnobis motion (2014 NY Slip Op 73661[U] [1st Dept 2014]). Concur—Gonzalez,P.J., Tom, Friedman, Acosta and Moskowitz, JJ.