Submitted - April 16, 2019
Daley Duncan, Brooklyn, NY, for appellant.
William V. Grady, District Attorney, Poughkeepsie, NY
(Kirsten A. Rappleyea of counsel), for respondent.
C. DILLON, J.P. JOHN M. LEVENTHAL VALERIE BRATHWAITE NELSON
LINDA CHRISTOPHER, JJ.
DECISION & ORDER
by the defendant from a judgment of the County Court,
Dutchess County (Peter M. Forman, J.), rendered February 14,
2017, convicting him of criminal sale of a controlled
substance in the third degree, upon his plea of guilty, and
that the judgment is affirmed.
defendant's contention that he was deprived of 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; see People v Evans, 16 N.Y.3d
571, 575 n 2). 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,
and we decline to review the claim on this direct appeal
(see People v Freeman, 93 A.D.3d 805, 806;
People v Maxwell, 89 A.D.3d at 1109).
defendant further contends that his plea of guilty was
involuntary because the County Court did not advise him of
the possibility that he would be deported as a consequence of
his plea (see generally People v Peque, 22 N.Y.3d
168). Under the circumstances of this case, where nothing in
the record contradicts the defendant's statement made
under oath, at the plea proceeding, that he was a citizen of
the United States, or the information in the Department of
Probation Presentence Investigation Report indicating that
the defendant was a naturalized United States citizen, we
reject the defendant's contention (see People v
Tull, 159 A.D.3d 1387, 1387-1388). As the record is
bereft of any evidence that the defendant is not a United
States citizen, any issue relating to his citizenship status
is not properly before us on his direct appeal.
we take the opportunity to express our view that a trial
court should not ask a defendant whether he or she is a
United States citizen and decide whether to advise the
defendant of the plea's deportation consequence based on
the defendant's answer. Instead, a trial court should
advise all defendants pleading guilty to felonies that, if
they are not United States citizens, their felony guilty plea
may expose them to deportation (see People v Peque,
22 N.Y.3d at 197). This recommendation is consistent with the
Court of Appeals' pronouncement in Peque:
"[T]o protect the rights of the large number of
noncitizen defendants pleading guilty to felonies in New
York, trial courts must now make all defendants
aware that, if they are not United States citizens, their
felony guilty pleas may expose them to deportation"
(id. [emphasis added]; see CPL 220.50;
see also Padilla v Kentucky, 559 U.S. 356).
Additionally, this recommendation is consistent with the
legislature's pronouncement in CPL 220.50(7). Although
that statute, deemed to be repealed September 1, 2020,
indicates, in part, that "[t]he failure to advise the
defendant pursuant to this subdivision shall not be deemed to
affect the voluntariness of a plea of guilty or the validity
of a conviction, nor shall it afford a defendant any rights
in a subsequent proceeding relating to such defendant's
deportation, exclusion or denial of naturalization[, ]"
it specifically provides, in part, that "[p]rior to
accepting a defendant's plea of guilty to a count or
counts of an indictment or a superior court information
charging a felony offense, the court must advise the
defendant on the record, that if the defendant is not a
citizen of the United States, the defendant's plea of
guilty and the court's acceptance thereof may result in
the defendant's deportation, exclusion from admission to
the United States or denial of naturalization pursuant to the
laws of the United States" (CPL 220.50 [emphasis
added]). Moreover, giving a "short, straightforward
statement" (People v Peque, 22 N.Y.3d at 197)
regarding deportation will neither add significantly to the
length of the plea proceeding nor encroach meaningfully on
the trial court's discretion. Whether a defendant
receives the Peque warning should not depend on the
defendant having to acknowledge, on the record in open court,
that he or she is not a United States citizen, particularly
since eliciting noncitizen status may raise, in some cases,
concerns of compelled self-incrimination (see US
Const Amend V; NY Const, art 1, § 6).
LEVENTHAL, BRATHWAITE NELSON and CHRISTOPHER, JJ., concur.
DILLON, JP, concurs, and votes to affirm the judgment, with
the following memorandum:
with my colleagues that the defendant's judgment of
conviction should be affirmed.
of one's own place of birth and/or citizenship is so
basic that it has been considered to be pedigree information
(see People v Mondon, 129 Misc.2d 13, 18; Matter
of Beals, 40 Misc.2d 61). Here, the defendant advised
the County Court under oath during the plea proceeding that
he was a citizen of the United States, and the trial judge
had no reason to believe or suspect otherwise. In my view, if
a defendant misinforms the court that he or she is a citizen
of the United States, which is then relied upon by the court
during sentencing, the defendant's conduct operates as a
waiver of the right to ...