| People v Rodriguez-Abreu |
| 2019 NY Slip Op 01800 [170 AD3d 895] |
| March 13, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Diony Rodriguez-Abreu, Appellant. |
Marianne Karas, Thornwood, NY, for appellant.
Madeline Singas, District Attorney, Mineola, NY (Laurie K. Gibbons and Hilda Mortensenof counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (David P.Sullivan, J.), rendered October 17, 2016, convicting him of attempted robbery in the seconddegree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
Although the defendant validly waived his right to appeal (see People v Sanders, 25 NY3d337, 341-342 [2015]; People vLopez, 6 NY3d 248, 255 [2006]), his contention that his plea was not knowing,voluntary, and intelligent survives his valid appeal waiver (see People v Seaberg, 74NY2d 1, 10 [1989]; People vFontanet, 126 AD3d 723 [2015]). However, the defendant's contention that his plea ofguilty was not entered voluntarily because the Supreme Court failed to adequately advise him ofthe immigration consequences of his plea is unpreserved for appellate review, as he failed toraise the issue or move to withdraw his plea despite indicating on the record that he was awarethat there could be immigration consequences to pleading guilty (see People v Peque, 22 NY3d 168,183 [2013]; People v Ramsood, 161AD3d 1198, 1199 [2018]; People vSanchez, 152 AD3d 548 [2017]). In any event, the defendant's contention is withoutmerit, as the court adequately advised him that his plea of guilty could expose him to deportation(see People v Ramsood, 161 AD3d at 1199; People v Sanchez, 152 AD3d at 548;People v Jimenez, 150 AD3d408, 409 [2017]).
The defendant further argues that his plea of guilty was not entered voluntarily because theSupreme Court did not accurately advise him of his potential sentencing exposure, and failed toinform him that as a consequence of his plea of guilty he may receive an enhanced sentence forany crime that he may commit in the future. However, the defendant's contentions areunpreserved for appellate review (seePeople v David, 163 AD3d 846 [2018]) and, in any event, without merit (see People v Taylor, 60 AD3d 708,709 [2009]; People v Depeyster, 115 AD2d 613 [1985]; cf. People v Garcia, 92NY2d 869, 870 [1998]).
The defendant's contention, in effect, that ineffective assistance of counsel affected thevoluntariness of his plea is based, in part, on matter on the record and, in part, on matter outsidethe record, and thus, constitutes a mixed claim of ineffective assistance (see People v Evans, 16 NY3d 571,575 [2011]; People v Maxwell, 89AD3d 1108, 1109 [2011]). Therefore, a CPL 440.10 proceeding is the appropriate forum forreviewing the claim in its entirety (seePeople v Freeman, 93 AD3d 805, 806 [2012]; People v Maxwell, 89 AD3d at1109). Austin, J.P., Roman, Miller and Brathwaite Nelson, JJ., concur.