| People v Thomas |
| 2017 NY Slip Op 06480 [153 AD3d 1445] |
| September 14, 2017 |
| Appellate Division, Third Department |
[*1](September 14, 2017)
| The People of the State of New York, Respondent, v HarveyThomas, Appellant. |
Janet Kealy, Hudson, for appellant.
Paul Czajka, District Attorney, Hudson (Joyce Crawford of counsel), for respondent.
McCarthy, J.P. Appeal from a judgment of the County Court of Columbia County (Koweek,J.), rendered May 7, 2014, convicting defendant upon his plea of guilty of the crime of criminalsale of a controlled substance in the third degree (two counts).
Defendant, who is not a United States citizen, was charged in an indictment with two countsof criminal sale of a controlled substance in the third degree. Pursuant to a written pleaagreement, which included a waiver of appeal, defendant agreed to plead guilty to both counts inexchange for the People's recommendation of a three-year prison sentence, three years ofpostrelease supervision and no opposition to placement in the Willard drug treatment program.Thereafter, consistent with the terms of the plea agreement, defendant was sentenced as apredicate felon to two concurrent prison terms of three years—together with three years ofpostrelease supervision—to be served under parole supervision as part of the Willard drugtreatment program pursuant to CPL 410.91. Defendant appeals.
Initially, we agree with defendant that the waiver of the right to appeal was not valid. Duringthe plea colloquy, County Court did not adequately apprise defendant that his appeal rights wereseparate and distinct from those trial-related rights automatically forfeited by his guilty plea (see People v Bradshaw, 18 NY3d257, 264 [2011]; People vLopez, 6 NY3d 248, 256 [2006]; People v Mitchell, 144 AD3d 1327, 1328 [2016]). Further, thelengthy written plea agreement in which the waiver of the right to appeal appears does notdistinguish in any meaningful way the separate and distinct nature of the appeal waiver (see People v Breault, 150 AD3d1548, 1548 [2017]; compare Peoplev Corbin, 121 AD3d 803, 803-804 [2014]). As such, [*2]we are unable to conclude that "defendant understood the content orconsequences of the appeal waiver" (People v Herbert, 147 AD3d 1208, 1209 [2017] [internal quotationmarks and citation omitted]; see People v Bradshaw, 18 NY3d at 264).
Turning to defendant's ineffective assistance of counsel claim, defendant contends that hisplea was involuntary because his defense counsel failed to adequately inform him of thedeportation consequences of his guilty plea under federal immigration statutes (see 8USC §§ 1101 [a] [43]; 1227 [a] [2] [B] [i]). Defendant's ineffective assistanceof counsel claim, however, "is unpreserved for our review in the absence of an appropriatepostallocution motion" (People vLewis, 143 AD3d 1183, 1185 [2016]; see People v Peque, 22 NY3d 168, 183, 202-203 [2013];People v Soprano, 135 AD3d 1243, 1243 [2016], lv denied 27 NY3d 1007[2016]; cf. People v Rebelo, 137AD3d 1315, 1316 [2016], lv denied 28 NY3d 936 [2016], cert denied 580US &mdash, 137 S Ct 385 [2016]). Further, our review of the record confirms that defendant didnot make any statements during the plea colloquy or at sentencing that would trigger the narrowexception to the preservation rule (see People v Peque, 22 NY3d at 182-183; People vLewis, 143 AD3d at 1185).
In any event, defendant's claim that he was not properly advised that he could be deported asa consequence of his plea is belied by the record. During the plea colloquy, County Courtinformed defendant of his potential immigration consequences resulting from his plea, anddefendant expressly acknowledged in the written plea agreement that he had been afforded theopportunity to discuss with his attorney the potential deportation consequences resulting from hisplea and that he understood that his conviction could result in, among other things, hisdeportation, exclusion from admission to the United States or denial of naturalization (see People v Lawrence, 148 AD3d1472, 1474 [2017]; People v Rebelo, 137 AD3d at 1317; People v Balbuena, 123 AD3d1384, 1386 [2014]). Finally, to the extent that defendant's ineffective assistance of counselclaim is premised upon matters not appearing on the record before us, defendant must pursue thisclaim by means of a CPL article 440 motion (see People v Peque, 22 NY3d at 202-203;People v Balbuena, 123 AD3d at 1386).
Garry, Rose, Devine and Clark, JJ., concur. Ordered that the judgment is affirmed.