| People v Hazel |
| 2016 NY Slip Op 08375 [145 AD3d 797] |
| December 14, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Jason A. Hazel, Appellant. |
Mark Diamond, New York, NY, for appellant.
James A. McCarty, Acting District Attorney, White Plains, NY (Laurie Sapakoff andSteven Bender of counsel), for respondent.
Appeal by the defendant from an amended judgment of the County Court,Westchester County (Minihan, J.), rendered March 27, 2015, revoking a sentence ofprobation previously imposed by the same court (Zuckerman, J.), upon a finding that heviolated a condition thereof, upon his admission, and imposing a sentence ofimprisonment upon his previous conviction of attempted burglary in the seconddegree.
Ordered that the amended judgment is affirmed.
On July 7, 2014, the defendant pleaded guilty to the crime of attempted burglary inthe second degree. At the plea hearing, prior to pleading guilty, the defendant informedthe County Court that he was a United States citizen; he now claims that he is not acitizen. Nonetheless, at a later point in the plea proceeding, the prosecutor warned thedefendant that if he was in fact a noncitizen, his plea to this felony would expose him tothe possibility of deportation. The defendant also waived his right to appeal. There is noindication that the defendant moved to withdraw his plea of guilty prior to October 16,2014, when the County Court imposed the agreed-upon sentence of probation.
In December 2014, the Westchester County Department of Probation filed a petitionalleging a violation of a condition of probation, asserting, inter alia, that the defendantfailed to report for probation supervision. On February 27, 2015, as part of a negotiatedagreement, the defendant admitted that he violated a condition of probation by failing toreport to his probation officer, and waived his right to appeal. There is no indication thatthe defendant moved to withdraw his admission prior to March 27, 2015, when theCounty Court sentenced him to the agreed-upon, one-year term of imprisonment.
The defendant appeals from the amended judgment of conviction rendered March27, 2015, made upon his admission to a violation of a condition of probation, and theenhanced sentence imposed thereon. As such, the defendant's contentions regarding theoriginal judgment of conviction rendered October 16, 2014, based on the initial plea andsentence, are beyond the scope of our review on this appeal (see People v Whitlock, 114AD3d 970 [2014]; People vSansone, 65 AD3d 636 [2009]).
[*2] As a threshold matter, the defendant's claim with respect to the voluntariness ofhis admission to a violation of a condition of probation survives even a valid waiver ofthe right to appeal (see People vJoseph, 103 AD3d 665 [2013]). His assertion pursuant to Padilla vKentucky (559 US 356 [2010]), that his attorney failed to advise him of theimmigration consequences of his plea to a violation of probation, affects thevoluntariness of his plea, and thus, survives a waiver of the right to appeal (see People v Lopez, 6 NY3d248, 255 [2006]; People vJoseph, 142 AD3d 627 [2016]; People v Drammeh, 100 AD3d 650 [2012]).
Notwithstanding, the defendant failed to preserve for appellate review his claim thatthe admission to a violation of a condition of probation was not knowingly, intelligently,and voluntarily made on the ground that his attorney did not advise him of theimmigration consequences of his admission (see People v Toxey, 86 NY2d 725[1995]; People v Sandher,12 AD3d 464 [2004]). The defendant's additional contention, that his admission to aviolation of a condition of probation was involuntary because the County Court failed toadvise him of the immigration consequences of his admission, is also unpreserved forappellate review (see CPL 470.05 [2]; People v Peque, 22 NY3d 168, 182 [2013]; People vDrammeh, 100 AD3d at 651; People v Soria, 99 AD3d 1027 [2012]; People v Ramnaraine, 92AD3d 809 [2012]). Neither claim falls within the narrow exception to thepreservation requirement (see People v Peque, 22 NY3d at 182-183), and wedecline to reach them in the exercise of our interest of justice jurisdiction (seeCPL 470.15 [6]).
The defendant's remaining contentions are without merit. Dillon, J.P., Leventhal,Cohen and Miller, JJ., concur.