PEOPLE v. GNOKA (2022)

Judgments of conviction (Ann E. Scherzer, J.), entered July 31, 2014, affirmed.

Defendant's ineffective assistance of counsel claim is not reviewable on direct appeal. Defendant contends that he was deprived of effective assistance because his attorney misadvised him of the immigration consequences of his pleas by stating that “there are possible negative immigration consequences” (see Padilla v Kentucky, 559 US 356, 369 [2010]). The record is insufficient to permit adequate review of defendant's claim. Accordingly, since defendant has not made a CPL 440.10 motion, the merits of the ineffective assistance claim may not be addressed on appeal (see People v Gomez, 186 AD3d 422, 423 [2020]; see also People v Lafontant, 189 AD3d 461 [2020], lv denied 36 NY3d 1057 [2021]; People v Ramos, 169 AD3d 425 [2019]).

In any event, even assuming that counsel misadvised defendant of the immigration consequences of his guilty pleas, the proper remedy is to hold the appeal in abeyance to afford defendant the opportunity to move to vacate his pleas upon a showing that there is a reasonable probability that he would not have pleaded guilty had he been made aware of the deportation consequences of his pleas (see e.g. People v Acosta, 202 AD3d 447 [2022]; People v Johnson, 165 AD3d 556 [2018]). However, the only relief defendant requests is dismissal of the accusatory instruments rather than vacatur of the pleas, and he expressly requests that this Court affirm the conviction if it does not grant a dismissal. Since it cannot be said that no penological purpose would be served by remanding these matters to Criminal Court, dismissal is not warranted and we affirm on this basis as well (see People v Conceicao, 26 NY3d 375, 385 n [2015]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Per Curiam.

All concur