People v. Tull

• Decision Date: 16 March 2018
• Docket Number: KA 14–01444,203
• Parties: The PEOPLE of the State of New York, Respondent, v. Joel A. TULL, Defendant–Appellant. (Appeal No. 1.)
• Court: New York Supreme Court — Appellate Division

159 A.D.3d 1387

72 N.Y.S.3d 675

The PEOPLE of the State of New York, Respondent,

v.Joel A. TULL, Defendant–Appellant. (Appeal No. 1.)

203

KA 14–01444

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

Entered: March 16, 2018

LAW OFFICE OF MATTHEW BOROWSKI, BUFFALO (MATTHEW BOROWSKI OF COUNSEL), FOR DEFENDANT–APPELLANT.

JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CHRISTOPHER T. VALDINA OF COUNSEL), FOR RESPONDENT.

PRESENT: WHALEN, P.J., CENTRA, CARNI, NEMOYER, AND CURRAN, JJ.

MEMORANDUM AND ORDERMemorandum:

Defendant appeals from two judgments convicting him, upon his pleas of guilty, of criminal possession of marihuana in the second degree ( Penal Law § 221.25 ) and criminal sale of marihuana in the first degree (§ 221.55), respectively. In both appeals, we reject defendant's contention that his guilty pleas were involuntary because County Court did not advise him that he may be deported as a consequence thereof (see generally People v. Peque, 22 N.Y.3d 168, 193, 980 N.Y.S.2d 280, 3 N.E.3d 617 [2013] ). In Peque, "the Court of Appeals held that, as part of its independent obligation to ascertain whether a defendant is pleading guilty voluntarily, a trial court must alert a noncitizen defendant that he or she may be deported as a consequence of the plea of guilty" ( People v. Lopez–Alvarado, 149 A.D.3d 981, 981, 52 N.Y.S.3d 418 [2d Dept. 2017] [emphasis added] ). During the plea colloquy in this case, however, defense counsel told the court that defendant was a citizen of the United States. Defense counsel's statement to the court was binding upon defendant (see generally People v. Brown, 98 N.Y.2d 226, 232–233, 746 N.Y.S.2d 422, 774 N.E.2d 186 [2002] ; People v. Sacco, 199 A.D.2d 288, 288, 604 N.Y.S.2d 971 [2d Dept. 1993], lv dismissed 82 N.Y.2d 853, 606 N.Y.S.2d 605, 627 N.E.2d 526 [1993], lv denied 84 N.Y.2d 832, 617 N.Y.S.2d 152, 641 N.E.2d 173 [1994], reconsideration denied 84 N.Y.2d 939, 621 N.Y.S.2d 536, 645 N.E.2d 1236 [1994] ). Thus, defendant is not entitled to relief under Peque (see People v. Brazil, 123 A.D.3d 466, 467, 998 N.Y.S.2d 181 [1st Dept. 2014], lv denied 25 N.Y.3d 1198, 16 N.Y.S.3d 521, 37 N.E.3d 1164 [2015] ).

People v. Palmer , 159 A.D.3d 118, 69 N.Y.S.3d 638, 2018 WL 650845 (Feb. 1, 2018) (1st Dept. 2018) is distinguishable. In that case, the defendant had well-documented mental health issues that called into question the reliability of his claim to United States citizenship. No such mental health concerns are present in this case. Moreover, unlike in Palmer, nothing in this record casts doubt on the accuracy of defense counsel's statement concerning defendant's citizenship. Indeed, the only other mention of defendant's citizenship status in the record is an arrest report wherein defendant is described as a citizen of the United States.

Finally, defendant's contention in both appeals that he was denied effective assistance of counsel is based on matters outside the record and must therefore be raised in a motion pursuant to CPL article 440 (see People v. Pastor, 28 N.Y.3d 1089, 1091, 45 N.Y.S.3d 317, 68 N.E.3d 42 [2016] ; People v....