| People v Tariq |
| 2018 NY Slip Op 07803 [166 AD3d 1248] |
| November 15, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Wahaj Tariq, Also Known as Hodgee,Appellant. |
Danielle Neroni Reilly, Albany, for appellant.
Joel E. Abelove, District Attorney, Troy (Jacob B. Sher of counsel), forrespondent.
Pritzker, J. Appeal from a judgment of the County Court of Rensselaer County(Young, J.), rendered June 16, 2017, convicting defendant upon his plea of guilty of thecrime of criminal possession of a controlled substance in the third degree.
In satisfaction of a nine-count indictment, defendant, who is not a United Statescitizen, pleaded guilty to criminal possession of a controlled substance in the third degreeand waived his right to appeal. After defendant admitted to the second felony offenderstatement filed, County Court sentenced defendant as a second felony offender, inaccordance with the terms of the plea agreement, to a prison term of 4
Defendant contends that, because he was not adequately informed of the deportationconsequences of his plea, the plea was not voluntarily entered and he received theineffective assistance of counsel. Defendant's contentions, however, are unpreserved forour review as the record does not reflect that he made an appropriate postallocutionmotion, nor did he make any statement during the plea colloquy that would trigger theexception to the preservation requirement (see People v Thomas, 153 AD3d 1445, 1446 [2017], lvdenied 30 NY3d 1064 [2017]; People v Balbuena, 123 AD3d 1384, 1385 [2014]). In anyevent, were we to consider the claims, we would find that his contentions are belied bythe record. The record reflects that County Court informed defendant of the likelydeportation consequences resulting from his plea, and defendant acknowledged that hehad sufficient opportunity to discuss the deportation consequences with his attorney andunderstood that entering the plea could result in his deportation (see People vThomas, 153 AD3d at 1446). To the extent that defendant asserts that defensecounsel did not adequately or properly advise him of the immigration consequences, suchclaim concerns matters not appearing on the face of the record and, as such, is more[*2]appropriately pursued by means of a CPL article 440motion (see People v Balbuena, 123 AD3d at 1386).
Defendant also asserts that he was improperly sentenced as a second felony offenderbecause the prior felony conviction set forth in the second felony offender statement wasinaccurate. Any challenge to the accuracy of the statement filed pursuant to CPL 400.21is waived due to defendant's failure to controvert the allegations at sentencing (see People v Johnson, 133AD3d 1028, 1029 [2015]; People v Atkinson, 58 AD3d 943, 944 [2009]). Inany event, were we to consider the issue, we would find it to be without merit. Defendantpleaded guilty with the understanding that he would be sentenced as a second felonyoffender, was given notice of the prior felony conviction and admitted—and doesnot otherwise dispute—that he is, in fact, a second felony offender. As there wassubstantial compliance with CPL 400.21, we would find any inaccuracy in the priorfelony statement with regard to the degree of the prior felony conviction reflected in theCPL 400.21 statement filed to be harmless error (see People v Atkinson, 58AD3d at 944; People vPierre, 8 AD3d 904, 906-907 [2004], lv denied 3 NY3d 710 [2004];People v Mann, 258 AD2d 738, 739 [1999], lv denied 93 NY2d 900[1999]).
Lynch, J.P., Clark, Mulvey and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.