PEOPLE v. DELACRUZ (2018)

Judgment, Supreme Court, New York County (Juan M. Merchan, J.), rendered January 3, 2012, as amended January 17, 2017, convicting defendant, upon his plea of guilty, of criminal sale of a controlled substance in the second degree, and sentencing him to a term of 41/212 years, unanimously affirmed.

Defendant has not established that the narrow exception to the preservation requirement applies to his Peque claim (see People v. Peque, 22 N.Y.3d 168, 182–183, 980 N.Y.S.2d 280, 3 N.E.3d 617 [2013], cert denied Thomas v. New York, 574 U.S. ––––, 135 S.Ct. 90, 190 L.Ed.2d 75 [2014] ).  Defendant was informed of his potential deportation by a notice of immigration consequences that the People served upon him, in the presence of his attorney, at arraignment, months before his guilty plea, giving him the opportunity to raise the issue, and rendering his claim unpreserved (see e. g. People v. Barry, 149 A.D.3d 494, 52 N.Y.S.3d 323 [1st Dept. 2017], lv denied 29 N.Y.3d 1123, 64 N.Y.S.3d 673, 86 N.E.3d 565 [2017];  People v. Diakite, 135 A.D.3d 533, 24 N.Y.S.3d 584 [1st Dept. 2016], lv denied 27 N.Y.3d 1131, 39 N.Y.S.3d 113, 61 N.E.3d 512 [2016] ).  Moreover, the court discussed defendant's deportation at the plea proceeding.  We decline to review his claim in the interest of justice.

Defendant claims that his counsel provided him with ineffective assistance regarding the immigration consequences of his plea (see Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 [2010] ).  The record only reflects the fact that the attorney gave him some advice about the immigration consequences, not the content of the advice given (compare People v. Doumbia, 153 A.D.3d 1139, 60 N.Y.S.3d 157 [1st Dept. 2017][content of actual advice given on the record] ).  Because this claim involves matters not reflected in, or fully explained by, the record, it is unreviewable without the benefit of a fuller record generated by way of a CPL 440.10 motion (see People v. Pastor, 28 N.Y.3d 1089, 1091, 45 N.Y.S.3d 317, 68 N.E.3d 42 [2016];  Peque, 22 N.Y.3d at 202–203, 980 N.Y.S.2d 280, 3 N.E.3d 617).