| People v Tull |
| 2018 NY Slip Op 01735 [159 AD3d 1387] |
| March 16, 2018 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, v Joel A.Tull, Appellant. (Appeal No. 1.) |
Law Office of Matthew Borowski, Buffalo (Matthew Borowski of counsel), fordefendant-appellant.
Jon E. Budelmann, District Attorney, Auburn (Christopher T. Valdina of counsel), forrespondent.
Appeal from a judgment of the Cayuga County Court (Thomas G. Leone, J.), rendered May22, 2014. The judgment convicted defendant, upon his plea of guilty, of criminal possession ofmarihuana in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from two judgments convicting him, upon his pleas ofguilty, of criminal possession of marihuana in the second degree (Penal Law§ 221.25) and criminal sale of marihuana in the first degree(§ 221.55), respectively. In both appeals, we reject defendant's contention that hisguilty pleas were involuntary because County Court did not advise him that he may be deportedas a consequence thereof (see generallyPeople v Peque, 22 NY3d 168, 193 [2013]). In Peque, "the Court of Appealsheld that, as part of its independent obligation to ascertain whether a defendant is pleading guiltyvoluntarily, a trial court must alert a noncitizen defendant that he or she may be deportedas a consequence of the plea of guilty" (People v Lopez-Alvarado, 149 AD3d 981, 981 [2d Dept 2017][emphasis added]). During the plea colloquy in this case, however, defense counsel told the courtthat defendant was a citizen of the United States. Defense counsel's statement to the court wasbinding upon defendant (see generally People v Brown, 98 NY2d 226, 232-233 [2002];People v Sacco, 199 AD2d 288, 288 [2d Dept 1993], lv dismissed 82 NY2d 853[1993], lv denied 84 NY2d 832 [1994], denied upon reconsideration 84 NY2d939 [1994]). Thus, defendant is not entitled to relief under Peque (see People v Brazil, 123 AD3d466, 467 [1st Dept 2014], lv denied 25 NY3d 1198 [2015]).
People v Palmer (159 AD3d 118 [1st Dept 2018])is distinguishable. In that case, the defendant had well-documented mental health issues thatcalled into question the reliability of his claim to United States citizenship. No such mentalhealth concerns are present in this case. Moreover, unlike in Palmer, nothing in thisrecord casts doubt on the accuracy of defense counsel's statement concerning defendant'scitizenship. Indeed, the only other mention of defendant's citizenship status in the record is anarrest report wherein defendant is described as a citizen of the United States.
Finally, defendant's contention in both appeals that he was denied effective assistance ofcounsel is based on matters outside the record and must therefore be raised in a motion pursuantto CPL article 440 (see People vPastor, 28 NY3d 1089, 1091 [2016]; People v Haffiz, 19 NY3d 883, 885 [2012]).Present—Whalen, P.J., Centra, Carni, NeMoyer and Curran, JJ.