People v. Lopez-Alvarado

• Decision Date: 19 May 2021
• Docket Number: Ind. No. 1157/12,2014-10213
• Citation: 144 N.Y.S.3d 380 (Mem),194 A.D.3d 961
• Parties: The PEOPLE, etc., respondent, v. Reynaldo LOPEZ–ALVARADO, appellant.
• Court: New York Supreme Court — Appellate Division

194 A.D.3d 961

144 N.Y.S.3d 380 (Mem)

The PEOPLE, etc., respondent,

v.Reynaldo LOPEZ–ALVARADO, appellant.

2014-10213

Ind. No. 1157/12

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

Argued—September 30, 2016

May 19, 2021

Christopher J. Cassar, Huntington, NY, for appellant.

Timothy D. Sini, District Attorney, Riverhead, N.Y. (Grazia DiVincenzo of counsel), for respondent.

CHERYL E. CHAMBERS, J.P., ROBERT J. MILLER, FRANCESCA E. CONNOLLY, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Suffolk County (John J. Toomey, J.), rendered October 25, 2013, convicting him of attempted assault in the second degree, upon his plea of guilty, and imposing sentence. By decision and order dated April 19, 2017, this Court remitted the matter to the County Court, Suffolk County, to afford the defendant an opportunity to move to vacate his plea of guilty, and thereafter for the submission of a report by the County Court on any such motion, and the appeal was held in abeyance in the interim (see People v. Lopez–Alvarado, 149 A.D.3d 981, 52 N.Y.S.3d 418 ). The County Court has filed its report.

ORDERED that the judgment is affirmed.

In a decision and order dated April 19, 2017, this Court remitted the matter to the County Court, Suffolk County, to afford the defendant an opportunity to move to vacate his plea of guilty based on the failure of the County Court to advise the defendant of the possibility of deportation as a consequence of his plea as required by ( People v. Peque, 22 N.Y.3d 168, 980 N.Y.S.2d 280, 3 N.E.3d 617 ) (see People v. Lopez–Alvarado, 149 A.D.3d 981, 52 N.Y.S.3d 418 ). At a hearing upon remittitur, defense counsel indicated that no such motion would be forthcoming. In a report to this Court dated August 28, 2020, the County Court noted that the defendant had not taken the opportunity to move to vacate his plea following this Court's April 19, 2017 decision and order, and that there was no further action to be taken. Since the defendant declined to move to vacate his plea of guilty on the basis of the County Court's failure to advise him of the possibility of deportation, there is no basis to vacate the plea and to reverse the judgment of conviction on this ground (see People v. Arana, 187 A.D.3d 1033, 1034, 131 N.Y.S.3d 240 ; People v. Kostyk, 186 A.D.3d 744, 745, 127 N.Y.S.3d 290 ; People v. El Hor, 173 A.D.3d 892, 892–893, 100 N.Y.S.3d 538 ).

The defendant also contends that his counsel was ineffective for failing to inform him of the deportation consequences of his plea of guilty (see Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 ). 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 matter 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, and we decline to review the claim on this direct appeal (see People v....