People v. Drammeh

• Decision Date: 07 November 2012
• Citation: 2012 N.Y. Slip Op. 07312,100 A.D.3d 650,953 N.Y.S.2d 274
• Parties: The PEOPLE, etc., respondent, v. Muhammad DRAMMEH, also known as Kevin Smith, appellant.
• Court: New York Supreme Court — Appellate Division

100 A.D.3d 650

953 N.Y.S.2d 274

2012 N.Y. Slip Op. 07312

The PEOPLE, etc., respondent,

v.Muhammad DRAMMEH, also known as Kevin Smith, appellant.

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

Nov. 7, 2012.

Michele Marte–Indzonka, Newburgh, N.Y., for appellant.

Francis D. Phillips II, District Attorney, Goshen, N.Y. (Elizabeth L. Guinup and Andrew R. Kass of counsel), for appellant.

RANDALL T. ENG, P.J., PETER B. SKELOS, PLUMMER E. LOTT, and JEFFREY A. COHEN, JJ.

Appeal by the defendant from a judgment of the County Court, Orange County (DeRosa, J.), rendered June 15, 2011, convicting him of robbery in the third degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant knowingly, intelligently, and voluntarily waived his right to appeal ( see People v. Lopez, 6 N.Y.3d 248, 256–257, 811 N.Y.S.2d 623, 844 N.E.2d 1145;cf. People v. Bradshaw, 18 N.Y.3d 257, 264–267, 938 N.Y.S.2d 254, 961 N.E.2d 645). The defendant's valid waiver of his right to appeal precludes review of his contentions that his attorney's failure to pursue youthful offender treatment rendered his assistance ineffective ( see People v. Rudolph, 85 A.D.3d 1492, 927 N.Y.S.2d 406,lv. granted19 N.Y.3d 977, 950 N.Y.S.2d 359, 973 N.E.2d 769) and that the County Court improvidently exercised its discretion in failing to grant him youthful offender treatment ( see People v. Franko, 98 A.D.3d 525, 948 N.Y.S.2d 911;People v. Holland, 91 A.D.3d 672, 935 N.Y.S.2d 899;People v. Joyce, 91 A.D.3d 986, 935 N.Y.S.2d 908;People v. Simms, 89 A.D.3d 1043, 933 N.Y.S.2d 558).

Review of the defendant's contention that he was deprived of the effective assistance of counsel because his attorney failed to advise him of the immigration consequences of his plea in accordance with Padilla v. Kentucky, 599 U.S. ––––, 130 S.Ct. 1473, 176 L.Ed.2d 284 is not barred by his appeal waiver because it affects the voluntariness of his plea ( see People v. Achouatte, 91 A.D.3d 1028, 1029, 936 N.Y.S.2d 384,cert. denied––– U.S. ––––, 133 S.Ct. 216, ––– L.Ed.2d ––––, 2012 WL 2154904, 2012 U.S. LEXIS 6084;see also People v. Young, 97 A.D.3d 771, 948 N.Y.S.2d 124;People v. Fenty, 96 A.D.3d 1075, 1076, 946 N.Y.S.2d 884,lv. denied19 N.Y.3d 1025, 953 N.Y.S.2d 558, 978 N.E.2d –––– [Sept 14, 2012 (table) ] ). However, since the record does not conclusively demonstrate that the defendant's attorney failed to inform him of the immigration consequences of his plea, the defendant's claim cannot be resolved without reference to matters outside the record. Accordingly, a CPL 440.10 proceeding is the appropriate forum for reviewing the defendant's ineffective assistance of counsel claim in its entirety ( see People v. Salmon, 97 A.D.3d 608, 609, 947 N.Y.S.2d 335;see also People v. Haffiz, 19 N.Y.3d 883, 885, 951 N.Y.S.2d 690, 976 N.E.2d 216;People v. Crooks, 98 A.D.3d 630, 949 N.Y.S.2d 651;People v. Miller, 97 A.D.3d 607, 608, 947 N.Y.S.2d 331;People v. Peque, 88 A.D.3d 1024, 1025, 930 N.Y.S.2d 492,lv. granted19 N.Y.3d 976, 950 N.Y.S.2d 359, 973 N.E.2d 769, and lv. granted sub nom. People v. Peque Sicajan, 19 N.Y.3d 977, 950 N.Y.S.2d 360, 973 N.E.2d 770;People v. Griffith, 78 A.D.3d 1194, 1196, 913 N.Y.S.2d 264).

The defendant's additional contention that his plea of guilty was involuntary because the County Court failed to advise him of the immigration consequences of his plea is unpreserved for appellate review ( see People v. Toxey, 86 N.Y.2d 725, 726, 631 N.Y.S.2d 119, 655 N.E.2d 160;People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5;People v. Rosario, 93 A.D.3d 605, 941 N.Y.S.2d 122;People v. Ramnaraine, 92 A.D.3d 809, 938 N.Y.S.2d 465;People v. Diaz, 92 A.D.3d 413, 937 N.Y.S.2d 225,lv. granted19 N.Y.3d 972, 950 N.Y.S.2d 355, 973 N.E.2d 765;People v. Vasquez, 85 A.D.3d 1068, 925 N.Y.S.2d 863;People v. Sandher, 12 A.D.3d 464, 465, 785 N.Y.S.2d 87). In any event, the County Court's failure to advise the defendant of the immigration consequences of his plea did not render his plea involuntary ( seeCPL 220.50[7]; People v. Ramnaraine, 92 A.D.3d 809, 938 N.Y.S.2d 465;People v. Vasquez, 85 A.D.3d 1068, 925 N.Y.S.2d 863;see also People v. Carty, 96 A.D.3d 1093, 1097, 947 N.Y.S.2d 617;People v. Rosario, 93 A.D.3d at 605, 941 N.Y.S.2d 122;People v. Diaz, 92 A.D.3d at 413–414, 937 N.Y.S.2d 225).