People v. Diallo

• Decision Date: 27 October 2011
• Citation: 931 N.Y.S.2d 444,88 A.D.3d 1152,2011 N.Y. Slip Op. 07523
• Parties: The PEOPLE of the State of New York, Respondent,v.Thierno M. DIALLO, Appellant.
• Court: New York Supreme Court — Appellate Division

88 A.D.3d 1152
931 N.Y.S.2d 444
2011 N.Y. Slip Op. 07523

The PEOPLE of the State of New York, Respondent,
v.
Thierno M. DIALLO, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

Oct. 27, 2011.

[931 N.Y.S.2d 445]

R. Graham McNamara, Glenville, for appellant.Andrew J. Wylie, District Attorney, Plattsburgh (Timothy G. Blatchley of counsel), for respondent.Before: PETERS, J.P., SPAIN, STEIN, McCARTHY and GARRY, JJ.STEIN, J.

[88 A.D.3d 1152] Appeal from a judgment of the County Court of Clinton County (Ryan, J.), rendered December 17, 2008, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the third degree.

Defendant was charged in two indictments with criminal possession of a controlled substance in the third degree (three counts) and criminal sale of a controlled substance in the third degree. In October 2008, defendant pleaded guilty to one count of criminal possession of a controlled substance in the third degree in satisfaction of both indictments and executed a written waiver of appeal. In accordance with the plea agreement, County Court then sentenced defendant to three years in prison followed by two years of postrelease supervision and further ordered him to pay $200 in restitution. Defendant now appeals.

Defendant's primary contention on this appeal—which would survive a valid waiver of the right to appeal ( see People v. Seaberg, 74 N.Y.2d 1, 10, 543 N.Y.S.2d 968, 541 N.E.2d 1022 [1989]; People v. Stokely, 49 A.D.3d 966, 968, 853 N.Y.S.2d 221 [2008] )—is that his plea was involuntary based upon the failure [88 A.D.3d 1153] of County Court and his trial counsel to advise him on the record of the immigration consequences of his conviction. It is now established that the failure of counsel to advise a defendant of the possibility of deportation as a result of his or her plea constitutes the ineffective assistance of counsel ( see Padilla v. Kentucky, 559 U.S. ––––, ––––, 130 S.Ct. 1473, 1486, 176 L.Ed.2d 284 [2010] ). Nonetheless, inasmuch as defendant limits his argument to the failure of the court and his attorney to advise him on the record of potential immigration consequences, Padilla does not specify that attorneys must do so ( id. at 1486, 176 L.Ed.2d 284). Moreover, while defendant correctly asserts that CPL 220.50 (7) requires the court to advise a defendant on the record, before accepting a plea of guilty, that such plea might result in deportation, the statute explicitly provides that the failure to so advise a defendant

[931 N.Y.S.2d 446]

does not affect the voluntariness of the plea or the validity of the conviction ( see CPL 220.50[7] ).

Defendant's challenge to the amount of restitution he was directed to pay also survives even a valid waiver of appeal where, as here, “the plea agreement did not specify the amount of restitution to be awarded” ( People v. Empey, 73 A.D.3d 1387, 1388, 901 N.Y.S.2d 756 [2010], lv. denied 15 N.Y.3d 804, 908...