| People v Balbuena |
| 2014 NY Slip Op 09070 [123 AD3d 1384] |
| December 31, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vEduardo Balbuena, Appellant. |
Cappy Weiner, Kingston, for appellant, and appellant pro se.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel),for respondent.
Peters, P.J. Appeal from a judgment of the County Court of Ulster County (Williams,J.), rendered March 27, 2013, convicting defendant upon his plea of guilty of the crimeof burglary in the second degree.
Defendant, a citizen of Mexico, was charged in an indictment with burglary in thesecond degree after he donned a mask and used a master key, which he had acquiredthrough his job, to enter an apartment occupied by an elderly couple. Under the plea offerproposed by the People, defendant would plead guilty to this charge and receive asentence of five years in prison, to be followed by five years of postrelease supervision.County Court, however, would only approve the plea offer if it included a sentence of sixyears in prison, to be followed by five years of postrelease supervision. Defendant agreedto the longer sentence and entered a plea of guilty to burglary in the second degree.When the parties appeared for sentencing, County Court indicated its unwillingness toimpose the agreed-upon sentence based upon information contained in the presentenceinvestigation report. The court gave defendant the option either to withdraw his guiltyplea and go to trial or to proceed with his guilty plea and receive a sentence of sevenyears in prison, to be followed by five years of postrelease supervision, and also to waivehis right to appeal. Defendant elected to do the latter and executed a written waiver of theright to appeal that advised him, among other things, of the immigration consequences ofhis plea. He was sentenced to seven years in prison, to be followed by five years ofpostrelease supervision, and he now appeals.
[*2] Inasmuch as County Court properly distinguished the waiver of the right to appealfrom the rights that defendant had automatically forfeited by virtue of his guilty plea,ensured that defendant understood the rights that he was waiving and had defendantexecute a detailed written waiver in open court that indicated, among other things, that hehad an opportunity to discuss the waiver with counsel, we find that the appeal waiverwas knowing, voluntary and intelligent (see People v Lyman, 119 AD3d 968, 969 [2014]; People v Dyckman, 114 AD3d994, 995 [2014], lv denied 23 NY3d 1036 [2014]). Defendant's contentionthat his plea was involuntary because County Court did not inform him of the deportationconsequences of the plea survives the waiver of his right to appeal (see People v Miner, 120 AD3d1449, 1449 [2014]; Peoplev Waite, 120 AD3d 1446, 1447 [2014]; People v Jackson, 119 AD3d 1288, 1288 [2014]).However, this issue was not preserved by a postallocution motion on such ground (see People v Sylvan, 107AD3d 1044, 1045 [2013], lv denied 22 NY3d 1141 [2014]). Further, noexception to the preservation requirement is applicable because defendant hadknowledge of his potential immigration consequences at the time of sentencing, as isevidenced by the written appeal waiver and the presentence investigation report (see People v Peque, 22 NY3d168, 182-183 [2013]; People v Murray, 15 NY3d 725, 726-727 [2010]; People v Chelley, 120 AD3d987, 988 [2014]; People vRodriguez, 115 AD3d 884, 884 [2014], lv denied 23 NY3d 1067[2014]).
Defendant's related claim of ineffective assistance of counsel is premised upon hiscounsel's alleged failure to advise him of the potential deportation consequences of hisguilty plea. Given that defendant signed an appeal waiver that informed him of thedeportation consequences of his plea and indicated that his attorney had discussed thisissue with him, we cannot, on this record, find merit in defendant's argument. To theextent that defendant's argument is based upon matters not appearing on the face of therecord before us, defendant must pursue this claim by means of a CPL article 440 motion(see People v Peque, 22 NY3d at 202-203; People v Underdue, 89 AD3d 1132, 1134 [2011], lvdenied 19 NY3d 969 [2012]). Finally, defendant's claim that his sentence is harshand excessive is precluded by his valid appeal waiver (see People v Borst, 121 AD3d1424, 1425 [2014]; Peoplev Smith, 121 AD3d 1131, 1132 [2014]).
Stein, Garry, Egan Jr. and Devine, JJ., concur. Ordered that the judgment isaffirmed.