PEOPLE v. HALL (2005)

Appeal, by permission, from an order of the County Court of Warren County (Austin, J.), entered July 30, 2003, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment convicting him of the crime of criminal sale of a controlled substance in the fifth degree, after a hearing.

Defendant, a citizen of Jamaica, pleaded guilty to criminal sale of a controlled substance in the fifth degree in satisfaction of an indictment charging him with criminal sale of a controlled substance in the third degree.   Pursuant to a negotiated plea agreement, defendant waived his right to appeal and was sentenced to six months in jail.   Defendant thereafter moved pursuant to CPL 440.10 to vacate the judgment of conviction on the ground that he was denied the effective assistance of counsel.   County Court denied the motion, after a hearing, and defendant now appeals with permission from this Court.

 Defendant's waiver of his right to appeal precludes him from asserting ineffective assistance of counsel except to the extent that it may have impacted the voluntariness of his plea (see People v. Smith, 301 A.D.2d 671, 673, 753 N.Y.S.2d 202 [2003], lv. denied 99 N.Y.2d 658, 760 N.Y.S.2d 123, 790 N.E.2d 297 [2003];  People v. White, 300 A.D.2d 830, 832, 752 N.Y.S.2d 166 [2002], lv. denied 99 N.Y.2d 633, 760 N.Y.S.2d 115, 790 N.E.2d 289 [2003];  People v. Ferguson, 192 A.D.2d 800, 800, 596 N.Y.S.2d 533 [1993], lv. denied 82 N.Y.2d 717, 602 N.Y.S.2d 814, 622 N.E.2d 315 [1993] ).   In this regard, defendant claims that counsel failed to advise him that his guilty plea could result in his deportation to Jamaica.   Although counsel's affirmative misrepresentations regarding deportation or other consequences of a plea may constitute ineffective assistance under certain circumstances, it is well established that counsel's failure to apprise a defendant of the possibility of deportation-“an act of omission”-does not by itself establish ineffective assistance (People v. McDonald, 296 A.D.2d 13, 18, 745 N.Y.S.2d 276 [2002], affd. 1 N.Y.3d 109, 769 N.Y.S.2d 781, 802 N.E.2d 131 [2003];  see People v. Ford, 86 N.Y.2d 397, 404-405, 633 N.Y.S.2d 270, 657 N.E.2d 265 [1995] ).   Accordingly, County Court properly denied defendant's motion.

ORDERED that the order is affirmed.

CREW III, J.P.

MUGGLIN, ROSE, LAHTINEN and KANE, JJ., concur.