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People v. Bentil

Supreme Court of New York, Second Department

June 26, 2013

The People of the State of New York, respondent,
v.
Thomas Bentil, appellant. (S.C.I. No. 10-00847)

Christine Moccia, Chappaqua, N.Y., for appellant.

Janet DiFiore, District Attorney, White Plains, N.Y. (Hae Jin Liu, Laurie G. Sapakoff, and Richard Longworth Hecht of counsel), for respondent.

MARK C. DILLON, J.P., L. PRISCILLA HALL, SHERI S. ROMAN, JEFFREY A. COHEN, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Westchester County (Colangelo, J.), rendered February 17, 2011, convicting him of forgery in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's contention that his plea of guilty was involuntary because he was subject to immediate deportation is unpreserved for appellate review (see People v Lopez, 71 N.Y.2d 662, 665; People v Drammeh, 100 A.D.3d 650, 651; People v Ramnaraine, 92 A.D.3d 809; People v Vasquez, 85 A.D.3d 1068). In any event, the County Court advised the defendant of the deportation consequences of his plea, and nothing in the record demonstrates that the defendant did not know and understand the consequences of his plea or that his plea was involuntary (see CPL 220.50[7]; People v Harris, 61 N.Y.2d 9, 17; People v Nixon, 21 N.Y.2d 338, 353, cert denied sub nom. Robinson v New York, 393 U.S. 1067; People v Drammeh, 100 A.D.3d at 651).

The defendant's claim that he was deprived of the constitutional right to the effective assistance of counsel is based, in part, on matter appearing on the record and, in part, on matter outside the record, and thus constitutes a " mixed claim[ ]' of ineffective assistance" (People v Maxwell, 89 A.D.3d 1108, 1109, quoting People v Evans, 16 N.Y.3d 571, 575 n 2, cert denied ___ U.S. ___, 132 S.Ct. 325). In this case, it is not evident from the matter appearing on the record that the defendant was deprived of the effective assistance of counsel (cf. People v Crump, 53 N.Y.2d 824; People v Brown, 45 N.Y.2d 852). Since the defendant's claim of ineffective assistance cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety (see People v Freeman, 93 A.D.3d 805, 806; People v Maxwell, 89 A.D.3d at 1009; People v Rohlehr, 87 A.D.3d 603, 604).

DILLON, J.P., HALL, ROMAN and COHEN, JJ., concur.


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