THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. RAMADHAN RAJAB DEFENDANT APPELLANT

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Supreme Court, Appellate Division, Fourth Department.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. RAMADHAN RAJAB, DEFENDANT–APPELLANT.

KA 12–00136

Decided: November 13, 2015

PRESENT:  SCUDDER, P.J., CENTRA, CARNI, WHALEN, AND DEJOSEPH, JJ. TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (KIMBERLY F. DUGUAY OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (ROBERT J. SHOEMAKER OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

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

Memorandum:  Defendant appeals from a judgment convicting him, upon his plea of guilty in County Court following remittal (People v. Rajab, 79 AD3d 1718), of rape in the first degree (Penal Law § 130.35[4] ).  We reject defendant's contention that the waiver of the right to appeal was not valid (see generally People v. Lopez, 6 NY3d 248, 256).  Defendant failed to preserve for our review his contention that Supreme Court, the court that sentenced defendant, relied on the original presentence investigation before imposing the agreed-upon sentence, without obtaining an updated presentence report (see People v. Woods, 122 AD3d 1400, 1401, lv denied 25 NY3d 1210).  In any event, that contention is without merit.  “[W]here as here, [the] defendant has been continually incarcerated between the time of the initial sentencing and the [sentencing following remittal], to require an update ․ does not advance the purpose of CPL 390.20[a]” (People v. Lard, 73 AD3d 1464, 1465, lv. denied 14 NY3d 889).  Contrary to defendant's further contention, the agreed-upon sentence is not unduly harsh or severe.

Defendant further contends that defense counsel did not properly advise him of the immigration consequences of his plea and that he was thereby denied effective assistance of counsel.  We reject that contention.  Although “counsel ‘must advise [his or] her client regarding the risk of deportation,’ ․ that ․ duty ‘is more limited’ where the ‘deportation consequences of a particular plea are unclear or uncertain’ “ (People v. Hernandez, 22 NY3d 972, 975, cert denied _ U.S. _, 134 S Ct 1900), and here, the deportation consequences are uncertain in light of the political asylum status of defendant.  The record establishes that defense counsel explained to County Court that defendant understood that, as a political refugee, he would not be deported to his country of origin, but that he could be deported to another country (see 8 USC §§ 1158[c][1][A];  1231[b] ).  Indeed, defendant advised County Court that, knowing that he could be deported to a country other than his country of origin, he wished to proceed with the plea.  Defendant thus was not denied effective assistance of counsel (see generally People v. Baldi, 54 N.Y.2d 137, 147).  To the extent that defendant's contentions involve allegations of deficient performance of counsel that do not appear on the record, they must be raised by way of a motion pursuant to CPL 440.10 (see People v. Peque, 22 NY3d 168, 202–203).

Frances E. Cafarell

Clerk of the Court