PEOPLE v. MOHOMED (2008)

 Defendant appeals from a judgment convicting him upon his plea of guilty of manslaughter in the first degree (Penal Law § 125.20 [1] ).   Defendant failed to move to withdraw the plea or to vacate the judgment of conviction and thus failed to preserve for our review his contention that the plea was not knowingly, voluntarily or intelligently entered (see People v. Burney, 41 A.D.3d 1221, 838 N.Y.S.2d 278, lv. denied 9 N.Y.3d 863, 840 N.Y.S.2d 893, 872 N.E.2d 1199).   To the extent that the contention of defendant that he was denied effective assistance of counsel survives his guilty plea and his waiver of the right to appeal (see People v. Santos, 37 A.D.3d 1141, 827 N.Y.S.2d 917, lv. denied 8 N.Y.3d 950, 836 N.Y.S.2d 560, 868 N.E.2d 243), we conclude that it is lacking in merit (see generally People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265).  “[D]efense counsel did not take a position adverse to defendant” by his comments concerning trial strategy (People v. Guerra-Pena, 46 A.D.3d 1469, 847 N.Y.S.2d 886, lv. denied 10 N.Y.3d 765, 854 N.Y.S.2d 327, 883 N.E.2d 1262), and defense counsel's failure to advise defendant of the immigration consequences of his plea does not constitute ineffective assistance of counsel (see People v. Canales, 48 A.D.3d 1105, 852 N.Y.S.2d 513;  People v. Johnson, 41 A.D.3d 1284, 1285, 837 N.Y.S.2d 810, lv. denied 9 N.Y.3d 877, 842 N.Y.S.2d 789, 874 N.E.2d 756).   Finally, the waiver by defendant of the right to appeal encompasses his challenge to Supreme Court's suppression ruling (see People v. Kemp, 94 N.Y.2d 831, 833, 703 N.Y.S.2d 59, 724 N.E.2d 754), as well as his challenge to the severity of the sentence (see People v. Hidalgo, 91 N.Y.2d 733, 737, 675 N.Y.S.2d 327, 698 N.E.2d 46).

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

MEMORANDUM: