| People v Joseph |
| 2016 NY Slip Op 05817 [142 AD3d 627] |
| August 17, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Peter Joseph, Appellant. |
Thomas T. Keating, Dobbs Ferry, NY, for appellant.
James A. McCarty, Acting District Attorney, White Plains, NY (Hae Jin Liu andLaurie G. Sapakoff of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County(Everett, J.), rendered December 16, 2014, convicting him of assault in the seconddegree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's waiver of his right to appeal was valid (see People v Sanders, 25 NY3d337 [2015]; People vLopez, 6 NY3d 248, 254 [2006]). The defendant's valid waiver of his right toappeal precludes appellate review of his contention that he was deprived of the effectiveassistance of counsel except to the extent that the alleged ineffective assistance affectedthe voluntariness of his plea (seePeople v Tarrant, 114 AD3d 710, 711 [2014]). Defense counsel's alleged failureto properly advise the defendant of the immigration consequences of his plea wouldaffect the voluntariness of the plea and thus is reviewable by this Court (see People v Montane, 110AD3d 1101, 1102 [2013]; People v Drammeh, 100 AD3d 650 [2012]).
In Padilla v Kentucky (559 US 356 [2010]), the United States Supreme Courtheld that the Sixth Amendment (US Const Sixth Amend) requires counsel for defendantsin criminal actions to advise their noncitizen clients about the risk of deportation arisingfrom a plea of guilty. Further, "inaccurate advice about a guilty plea's immigrationconsequences" may constitute ineffective assistance of counsel (People v Baret, 23 NY3d777, 785 [2014]; see Peoplev McDonald, 1 NY3d 109, 111 [2003]; People v Pinto, 133 AD3d 787 [2015]).
In this case, the record as a whole indicates that defense counsel advised thedefendant of the risk of deportation arising from a plea of guilty, and the defendant wasproperly advised of that risk (seePeople v Castro, 133 AD3d 986 [2015]).
The defendant's contention that he was not adequately advised of his Boykinrights (see Boykin v Alabama, 395 US 238 [1969]) is unpreserved for appellatereview, since the defendant did not move for leave to withdraw his plea of guilty,although he had ample time to do so (see People v Conceicao, 26 NY3d 375 [2015]; People v Sirico, 135 AD3d19, 22 [2015]). In any event, that contention is without merit.
[*2] The defendant's valid waiver of his right to appealprecludes review of his excessive sentence claim (see People v Lopez, 6 NY3d at256).
The defendant's remaining contentions are without merit. Rivera, J.P., Leventhal,Hinds-Radix and Brathwaite Nelson, JJ., concur.