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People v. Montane

Supreme Court of New York, Second Department

October 30, 2013

The People of the State of New York, respondent,
v.
Yotuhel Montane, appellant. Ind. No. 3196/09

Harvey A. Herbert, Brooklyn, N.Y., for appellant.

Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Linda Breen of counsel), for respondent.

REINALDO E. RIVERA, J.P., RUTH C. BALKIN, CHERYL E. CHAMBERS, SANDRA L. SGROI, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Dwyer, J.), rendered August 23, 2011, convicting him of conspiracy in the second degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v Bradshaw, 18 N.Y.3d 257; People v Lopez, 6 N.Y.3d 248, 256). As a result of the defendant's valid waiver of his right to appeal, appellate review of his challenge to the Supreme Court's suppression determination is precluded (see People v Oseni, 107 A.D.3d 829, lv denied 21 N.Y.3d 1044; People v Hackett, 93 A.D.3d 807).

Contrary to the People's contention, the defendant's plea did not constitute a waiver of his challenge to the territorial jurisdiction of the Supreme Court (see People v McLaughlin, 80 N.Y.2d 466, 471; People v Casias, 303 A.D.2d 294). Nor is appellate review of this issue precluded by the defendant's valid waiver of his right to appeal (see People v Seaberg, 74 N.Y.2d 1, 9). Nevertheless, the defendant's contention is without merit (see CPL 20.20; People v Artis, 63 A.D.3d 1173; Matter of Machado v Donalty, 107 A.D.2d 1079).

The defendant's valid waiver of his right to appeal also does not preclude appellate review of his claim that counsel's representation was ineffective, which is directed toward the voluntariness of the plea (see People v Gedin, 46 A.D.3d 701). Nevertheless, since the colloquy during the plea demonstrates that counsel discharged his obligation to inform the defendant of the immigration consequences of pleading guilty consistent with Padilla v Kentucky (559 U.S. 356, 369), his contention is without merit.

The defendant's remaining contention is without merit.

RIVERA, J.P., BALKIN, CHAMBERS and SGROI, JJ., concur.


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