| People v Rebelo |
| 2016 NY Slip Op 01517 [137 AD3d 1315] |
| March 3, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vRuben M. Rebelo, Appellant. |
Teresa C. Mulliken, Harpersfield, for appellant.
Richard D. Northrup Jr., District Attorney, Delhi (John L. Hubbard of counsel), forrespondent.
Garry, J. Appeals (1) from a judgment of the County Court of Delaware County(Becker, J.), rendered July 1, 2013, convicting defendant upon his plea of guilty of thecrime of criminal possession of a controlled substance in the fifth degree, and (2) bypermission, from an order of said court, entered November 24, 2014, which denieddefendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction,without a hearing.
In April 2013, in the course of a traffic stop in the Town of Harpersfield, DelawareCounty, defendant was arrested after drugs were found on his person and also in thevehicle in which he was a passenger. A preplea probation report was prepared, andthereafter, in July 2013, defendant executed a waiver of indictment and consented to beprosecuted by a superior court information charging him with various counts arisingfrom the incident. On the same date, in full satisfaction of the charges, defendant pleadedguilty to one count of criminal possession of a controlled substance in the fifth degreeand executed an appeal waiver. He was sentenced in accord with his plea agreement to asplit sentence of 90 days of incarceration and five years of probation. Defendant'ssubsequent motion to vacate the judgment of conviction pursuant to CPL 440.10 wasdenied without a hearing. He now appeals from the judgment of conviction and, bypermission, from the denial of his CPL 440.10 motion.
Defendant contends that he was deprived of the effective assistance of counsel as hewas [*2]erroneously advised that he was eligible for ayouthful offender adjudication and as counsel failed to adequately advise him of thedeportation consequences of his plea. At the outset, these claims survive defendant'suncontested appeal waiver only to the extent that they impact the voluntariness of hisplea (see People v Livziey,117 AD3d 1341, 1342 [2014]; People v Trombley, 91 AD3d 1197, 1201 [2012], lvdenied 21 NY3d 914 [2013]; People v Leonard, 63 AD3d 1278, 1278 [2009], lvdenied 13 NY3d 797 [2009]). Further, although a defendant is ordinarily required topreserve such a claim through an appropriate postallocution motion, preservation is notrequired where, as here, there is no practical opportunity to do so prior to sentencing (see People v Peque, 22 NY3d168, 183 [2013]; People vWilliams, 123 AD3d 1376, 1377 [2014]).[FN1]
Defendant was ineligible for youthful offender treatment at the time of theunderlying proceedings due to a prior youthful offender adjudication (see CPL720.10 [2] [c]). As he now contends, it appears from the record that both defense counseland County Court mistakenly believed that he remained eligible. However, the courtclearly and repeatedly advised that he would not be granted a youthful offenderadjudication; the court expressly stated this three times prior to the plea allocution.Nonetheless, defendant chose to proceed. In these circumstances, the misapprehension asto defendant's eligibility was rendered irrelevant by the court's clear and repeatedwarnings. Accordingly, we find that defendant's plea was voluntary (see generally People vConceicao, 26 NY3d 375, 383 [2015]; People v Chaney, 72 AD3d 1194, 1196 [2010]).
Defendant's claim that he was not warned that he would be deported as aconsequence of the plea is also belied by the record. Both prior to and during the courseof the plea allocution, and again before pronouncing sentence, County Court expresslyadvised defendant that a potential consequence of his plea would be his removal from thecountry; this was described in the initial proceedings as a "likely result."[FN2] Thus, defendant wasadequately apprised of the potential consequence of deportation that he faced as a resultof his plea (see People vCastro, 133 AD3d 986, 987 [2015]; People v Achouatte, 91 AD3d 1028, 1029 [2012], lvdenied 18 NY3d 954 [2012], cert denied 568 US &mdash, 133 S Ct 216[2012]).
Finally, we find that defendant's claims are capable of being resolved by reference tothe record on direct appeal and, thus, County Court did not err in denying defendant'sCPL 440.10 motion without a hearing (see People v Satterfield, 66 NY2d 796,799 [1985]; People vLaPierre, 108 AD3d 945, 946 [2013]).
Peters, P.J., Rose and Lynch, JJ., concur. Ordered that the judgment and order areaffirmed.
Footnote 1:Defendant's arraignmentupon the superior court information, plea and sentencing all occurred during a single,uninterrupted proceeding before County Court.
Footnote 2:It appears that defendanthad also conferred with separate counsel relative to his immigration status following hisprior conviction and youthful offender designation.