People v Ndiaye

People v Ndiaye 2018 NY Slip Op 06986 Decided on October 18, 2018 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 18, 2018
Richter, J.P., Manzanet-Daniels, Kapnick, Kern, Moulton, JJ.
7390 856/12

[*1]The People of the State of New York, Respondent,

v

Mor Ndiaye, Defendant-Appellant.

Robert S. Dean, Center for Appellate Litigation, New York (Robin Nichinsky of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Christine M. DiDomenico of counsel), for respondent.

Judgment, Supreme Court, New York County (Renee A. White, J.), rendered October 16, 2012, as amended October 24, 2012, convicting defendant, upon his guilty plea, of criminal possession of stolen property in the fifth degree, and sentencing him to a term of 11 months, unanimously affirmed.

Defendant has not established that the narrow exception to the preservation requirement applies to his Peque claim

(see People v Peque, 22 NY3d 168 [2013], cert denied 574 US __, 135 S Ct 90 [2014]). Review of defendant's unpreserved claim in the interest of justice is unwarranted.

Defendant claims that his counsel provided him with ineffective assistance regarding the immigration consequences of his plea (see Padilla v Kentucky, 559 US 356 [2010]). This claim involves matters not reflected in, or fully explained by, the record, which includes an ambiguous statement by counsel on the subject of deportation. Accordingly, this claim is unreviewable without the benefit of a fuller record generated by way of a CPL 440.10 motion (see People v Pastor, 28 NY3d 1089, 1091 [2016]; Peque, 22 NY3d at 202-203).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 18, 2018

CLERK