| People v Martial |
| 2015 NY Slip Op 00910 [125 AD3d 688] |
| February 4, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Georges Martial, Appellant. |
Christopher J. Cassar, P.C., Huntington, N.Y. (Richard Toscani of counsel), forappellant.
Thomas P. Zugibe, District Attorney, New City, N.Y. (Itamar J. Yeger of counsel),for respondent.
Appeal by the defendant from a judgment of the County Court, Rockland County(Apotheker, J.), rendered December 16, 2011, convicting him of criminal possession of acontrolled substance in the third degree, upon his plea of guilty, and imposingsentence.
Ordered that the judgment is affirmed.
The defendant pleaded guilty to criminal possession of a controlled substance in thethird degree after being informed by the County Court that he might be deported as aresult of the plea and acknowledging that he had consulted with immigration counsel,who told him that he would not be deported immediately but that there was "a chance" ofdeportation.
"[D]ue process compels a trial court to apprise a defendant that, if the defendant isnot an American citizen, he or she may be deported as a consequence of a guilty plea to afelony" (People v Peque, 22NY3d 168, 176 [2013]). Here, the County Court clearly apprised the defendant thathe might be deported as result of his plea of guilty. Thus, the court satisfied therequirements set forth by the Court of Appeals in People v Peque(id.).
Where a defendant's complaint about counsel is predicated on factors such ascounsel's strategy, advice, or preparation, that do not appear on the face of the record, thedefendant's claim must be raised by way of a CPL 440.10 motion (see People vPeque, 22 NY3d at 202; People v Rodriguez, 115 AD3d 884 [2014]). Here, as therecord does not conclusively demonstrate whether defense counsel advised the defendantof the immigration consequences of his plea of guilty, the defendant's contention that hiscounsel was ineffective for failing to do so cannot be reviewed on direct appeal (seePeople v Rodriguez, 115 AD3d at 884). Rather, that contention has been reviewedon the defendant's appeal from the denial of his motion pursuant to CPL 440.10 (seePeople v Martial, 125 AD3d 689 [2014] [decided herewith]). Rivera, J.P., Dickerson, Roman and Cohen, JJ.,concur.