115 AD3d 884
N.Y. App. Div. 2nd
2014

People v Rodriguez

Appellate Division, Second Department

March 19, 2014

2014 NY Slip Op 01774 [115 AD3d 884]

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 30, 2014

Mark Diamond, New York, N.Y., for appellant.

Thomas J. Spota, District Attorney, Riverhead, N.Y. (Glenn Green of counsel), for respondent.

Appeal by the defendant from a judgment of the County Court, Suffolk County (Kahn, J.), rendered March 5, 2010, convicting him of criminal sexual act in the first degree, upon his plea of guilty, and imposing sentence.

Ordered that the judgment is affirmed.

Since the record does not conclusively demonstrate whether the defendant‘s counsel advised him of the immigration consequences of his plea of guilty, the defendant‘s contention that his counsel was ineffective for failing to do so cannot be reviewed on direct appeal; rather, the contention may be appropriately reviewed on a motion pursuant to CPL 440.10 (see People v Peque, 22 NY3d 168, 202 [2013]; People v Haffiz, 19 NY3d 883, 884 [2012]; People v Drammeh, 100 AD3d 650, 651 [2012]). The defendant‘s contention regarding the County Court‘s failure to advise him of the immigration consequences of his plea of guilty is unpreserved for appellate review, as he failed to raise the issue or move to withdraw his plea despite the indication on the record that he was aware of the immigration issue by the time of sentencing (see People v Peque, 22 NY3d at 182-183), and we decline to reach it in the exercise of our interest of justice jurisdiction. Skelos, J.P., Lott, Roman and Cohen, JJ., concur.