| People v Williams |
| 2019 NY Slip Op 09303 [178 AD3d 1095] |
| December 24, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Deno Williams, Also Known as "G,"Appellant. |
Yasmin Daley Duncan, Brooklyn, NY, for appellant.
William V. Grady, District Attorney, Poughkeepsie, NY (Kirsten A. Rappleyea of counsel),for respondent.
Appeal by the defendant from a judgment of the County Court, Dutchess County (Peter M.Forman, J.), rendered February 14, 2017, convicting him of criminal sale of a controlledsubstance in the third degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that he was deprived of the effective assistance of counsel isbased, in part, on matter appearing on the record and, in part, on matter outside the record, and,thus, constitutes a "mixed claim of ineffective assistance" (People v Maxwell, 89 AD3d 1108, 1109 [2011]; see People v Evans, 16 NY3d 571,575 n 2 [2011]). Since the defendant's claim of ineffective assistance cannot be resolved withoutreference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum forreviewing the claim in its entirety, and we decline to review the claim on this direct appeal (see People v Freeman, 93 AD3d805, 806 [2012]; People v Maxwell, 89 AD3d at 1109).
The defendant further contends that his plea of guilty was involuntary because the CountyCourt did not advise him of the possibility that he would be deported as a consequence of hisplea (see generally People v Peque,22 NY3d 168 [2013]). Under the circumstances of this case, where nothing in the recordcontradicts the defendant's statement made under oath, at the plea proceeding, that he was acitizen of the United States, or the information in the Department of Probation PresentenceInvestigation Report indicating that the defendant was a naturalized United States citizen, wereject the defendant's contention (seePeople v Tull, 159 AD3d 1387, 1387-1388 [2018]). As the record is bereft of anyevidence that the defendant is not a United States citizen, any issue relating to his citizenshipstatus is not properly before us on his direct appeal.
However, we take the opportunity to express our view that a trial court should not ask adefendant whether he or she is a United States citizen and decide whether to advise the defendantof the plea's deportation consequence based on the defendant's answer. Instead, a trial courtshould advise all defendants pleading guilty to felonies that, if they are not United States citizens,their felony guilty plea may expose them to deportation (see People v Peque, 22 NY3d at197). This recommendation is consistent with the Court of Appeals' pronouncement inPeque: "[T]o protect the rights of the large number of noncitizen defendants pleadingguilty to felonies in New York, trial courts must now make all defendants aware that, ifthey are not United States citizens, their felony guilty pleas may expose them to deportation"(id. [emphasis added]; see CPL 220.50 [7]; see also Padilla v Kentucky,559 US 356 [2010]). Additionally, this recommendation is consistent with the legislature'spronouncement in CPL 220.50 (7). Although that statute, deemed to be repealed September 1,2020, indicates, in part, that "[t]he failure to advise the defendant pursuant to this subdivisionshall not be deemed to affect the voluntariness of a plea of guilty or the validity of a conviction,nor shall it afford a defendant any rights in a subsequent proceeding relating to such defendant'sdeportation, exclusion or denial of naturalization[,]" it specifically provides, in part, that "[p]riorto accepting a defendant's plea of guilty to a count or counts of an indictment or a superior courtinformation charging a felony offense, the court must advise the defendant on the record,that if the defendant is not a citizen of the United States, the defendant's plea of guilty and thecourt's acceptance thereof may result in the defendant's deportation, exclusion from admission tothe United States or denial of naturalization pursuant to the laws of the United States" (CPL220.50 [7] [emphasis added]). Moreover, giving a "short, straightforward statement" (Peoplev Peque, 22 NY3d at 197) regarding deportation will neither add significantly to the lengthof the plea proceeding nor encroach meaningfully on the trial court's discretion. Whether adefendant receives the Peque warning should not depend on the defendant having toacknowledge, on the record in open court, that he or she is not a United States citizen,particularly since eliciting noncitizen status may raise, in some cases, concerns of compelledself-incrimination (see US Const Amend V; NY Const, art 1, § 6).Leventhal, Brathwaite Nelson and Christopher, JJ., concur.
Dillon, J.P., concurs, and votes to affirm the judgment, with the following memorandum: Iagree with my colleagues that the defendant's judgment of conviction should be affirmed.
Knowledge of one's own place of birth and/or citizenship is so basic that it has beenconsidered to be pedigree information (see People v Mondon, 129 Misc 2d 13, 18 [1985];Matter of Beals, 40 Misc 3d 61[2013]). Here, the defendant advised the County Court under oath during the plea proceeding thathe was a citizen of the United States, and the trial judge had no reason to believe or suspectotherwise. In my view, if a defendant misinforms the court that he or she is a citizen of theUnited States, which is then relied upon by the court during sentencing, the defendant's conductoperates as a waiver of the right to receive immigration warnings under both People v Peque (22 NY3d 168[2013]) and CPL 220.50 (7) (see Peoplev Tull, 159 AD3d 1387 [2018]; People v Brazil, 123 AD3d 466, 467 [2014]).