| People v Tariq |
| 2018 NY Slip Op 07776 [166 AD3d 1211] |
| November 15, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Wahaj Tariq, Appellant. |
Danielle Neroni Reilly, Albany, for appellant.
Joel E. Abelove, District Attorney, Troy (Jacob B. Sher of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of Rensselaer County(Ceresia, J.), rendered October 15, 2015, convicting defendant upon his plea of guilty ofthe crime of criminal possession of a controlled substance in the fifth degree.
Defendant, who is not a United States citizen, was charged in an indictment withvarious drug-related crimes. The People extended a plea offer disposing of theindictment in exchange for defendant's plea of guilty to the crime of criminal possessionof a controlled substance in the fifth degree. Under the terms of the proposed pleaagreement, he would be sentenced to time served followed by five years of probation.During proceedings before County Court, defendant communicated his desire to acceptthe plea offer, and County Court proceeded to advise him of the rights that he wasforfeiting by pleading guilty, including waiving his right to appeal. County Court thenadvised defendant that, because he was not a United States citizen, he would likely bedeported and not permitted to return to the United States if he pleaded guilty. Defendantresponded that he nevertheless wished to plead guilty, then executed a written appealwaiver and entered a guilty plea. He was thereafter sentenced in accordance with theterms of the plea agreement, and he now appeals.
Defendant contends that he was denied the effective assistance of counsel becausecounsel failed to advise him of the deportation consequences of his guilty plea, thusrendering his guilty plea involuntary. Preliminarily, we note that this claim survivesdefendant's unchallenged waiver of the right to appeal insofar as it implicates thevoluntariness of his guilty plea (see People v Rebelo, 137 AD3d 1315, 1316 [2016], lvdenied 28 NY3d 936 [2016], cert denied 580 US —, 137 S Ct385 [2016]; People vRupnarain, 123 AD3d 1372, 1373 [2014]). However, the claim has not beenpreserved for review as the record does not disclose that defendant made an appropriatepostallocution motion, and we find that the exception to the preservation rule isinapplicable under the circumstances presented (see People v Peque, 22 NY3d 168, 182-183 [2013]; People v Thomas, 153 AD3d1445, 1446 [2017], lv denied 30 NY3d 1064 [2017]). In [*2]any event, the record discloses that County Courtspecifically advised defendant of the potential deportation consequences during the pleaproceedings, and such consequences were clearly set forth in the written waiver of theright to appeal that was executed by defendant as part of his guilty plea (see e.g.People v Thomas, 153 AD3d at 1446; People v Balbuena, 123 AD3d 1384, 1386 [2014]). To theextent that counsel's alleged omissions are based upon facts outside the record,defendant's ineffective assistance of counsel claim is more properly the subject of a CPLarticle 440 motion (see People v Peque, 22 NY3d at 202-203; People vThomas, 153 AD3d at 1447; People v Lewis, 143 AD3d 1183, 1185 [2016]). Inasmuchas the record reveals that defendant entered a knowing, voluntary and intelligent guiltyplea, we find no reason to disturb the judgment of conviction.
Lynch, J.P., Mulvey, Rumsey and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.