| People v Phipps |
| 2015 NY Slip Op 03576 [127 AD3d 1500] |
| April 30, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vRuffel Phipps, Appellant. |
Cappy Weiner, Kingston, for appellant, and appellant pro se.
James R. Farrell, District Attorney, Monticello (Katy Schlichtman of counsel), forrespondent.
Lahtinen, J.P. Appeal from a judgment of the County Court of Sullivan County(Labuda, J.), rendered October 2, 2012, convicting defendant upon his plea of guilty ofthe crimes of rape in the third degree and criminal sale of a controlled substance in thethird degree.
Defendant was charged, in one indictment, with rape in the third degree andendangering the welfare of a child and, approximately two months later, in a separateindictment, with two counts of criminal sale of a controlled substance in the third degree.Thereafter, defendant pleaded guilty, in satisfaction of both indictments, to rape in thethird degree and one count of criminal sale of a controlled substance in the third degreeand signed two appeal waivers. Following defendant's guilty plea, but prior tosentencing, he moved, pro se, to withdraw his plea and for the assignment of newcounsel. County Court denied defendant's motion to withdraw his guilty plea, butassigned defendant a new attorney. Defendant subsequently moved again, this timethrough counsel, to withdraw his guilty plea contending, among other things, that he"will be deported as a result of this conviction." However, defendant thereafter withdrewsaid motion, as a result of which it was dismissed by County Court. Defendant was thensentenced, as a second felony offender, to an aggregate prison term of four years, with 10years of postrelease supervision. Defendant appeals, challenging, among other things, thevoluntariness of both his plea and the waiver of his right to appeal.
As the record fails to indicate that County Court distinguished between defendant'sright [*2]to appeal and those rights forfeited upon hisguilty plea, we conclude that defendant did not understand the implications of the appealwaivers and they are therefore unenforceable (see People v Williford, 124 AD3d 1076, 1077 [2015]; compare People v Balbuena,123 AD3d 1384, 1385 [2014]). Although the two written waivers, which weresigned by defendant in open court, distinguished these rights and stated that defendanthad a full opportunity to discuss the waivers with his attorney, County Court made noinquiry as to whether defendant understood them or whether his counsel had in factdiscussed the waivers with him (see People v Vences, 125 AD3d 1050, 1051-1052 [2015];compare People vMcCaskill, 76 AD3d 751, 752 [2010]). Defendant next contends that his pleawas involuntary because County Court did not inform him, as a citizen of Jamaica, of thepotential deportation consequences of his plea. However, because defendant withdrewhis motion to withdraw his plea, this issue is unpreserved for our review (see People vBalbuena, 123 AD3d at 1385; People v Royce, 122 AD3d 1008, 1009 [2014]; People v Jones, 114 AD3d1080, 1081 [2014], lv denied 24 NY3d 961 [2014]; compare People v Rupnarain,123 AD3d 1372, 1373 [2014]). To the extent that defendant further argues that hisplea was involuntary based on County Court's failure to notify him that he would berequired to register as a sex offender, we note that this issue is likewise unpreserved and,in any event, such registration is a collateral consequence of his plea and thus does notundermine its voluntariness (seePeople v Wright, 53 AD3d 963, 963 [2008], lv denied 11 NY3d 710[2008]; People v Nash, 48AD3d 837, 837-838 [2008], lv denied 10 NY3d 937 [2008]).
Defendant's contentions that he received ineffective assistance of counsel due to hisattorney's failure to advise him of the immigration consequences and the sex offenderregistration requirement of his plea, as well as his counsel's alleged failure to presentCounty Court with a letter from the rape victim's mother, are likewise unavailing. Theseclaims are unpreserved due to defendant's withdrawal of his motion to withdraw hisguilty plea and, although defendant raised ineffective assistance of counsel claims in histwo CPL article 440 motions, he has not sought permission to appeal their denial byCounty Court (see People vLivziey, 117 AD3d 1341, 1342 [2014]; compare People v Rupnarain,123 AD3d at 1373). To the extent that defendant raises speedy trial and due processarguments, they are unpreserved (see People v Chinn, 104 AD3d 1167, 1169 [2013], lvdenied 21 NY3d 1014 [2013]), and his remaining contentions, to the extent that theyare properly before us, lack merit.
McCarthy, Garry and Lynch, JJ., concur. Ordered that the judgment is affirmed.