People v Cardoza (Yobany)

[*1] People v Cardoza (Yobany) 2015 NY Slip Op 51031(U) Decided on July 1, 2015 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 1, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : MARANO, P.J., IANNACCI and CONNOLLY, JJ.
2013-1828 S CR2013-1909 S CR 2013-1912 S CR 2013-1914 S CR

The People of the State of New York, Respondent,

against

Yobany A. Cardoza, Appellant.

Appeals from judgments of the District Court of Suffolk County, First District (William G. Ford, J.), rendered April 9, 2012. The judgments convicted defendant, upon his pleas of guilty, of driving while intoxicated (common law) and various traffic infractions (appeal No. 2013-1828 S CR), driving while intoxicated (common law), making a punishable false written statement, and a traffic infraction (appeal No. 2013-1909 S CR), criminal possession of a controlled substance in the seventh degree (appeal No. 2013-1912 S CR), and aggravated driving while intoxicated (per se) and various traffic infractions (appeal No. 2013-1914 S CR).

ORDERED that, on the court's own motion, the appeals are consolidated for purposes of disposition; and it is further,

ORDERED that the judgments of conviction are affirmed.

On March 8, 2012, defendant pleaded guilty to driving while intoxicated (common law) (Vehicle and Traffic Law § 1192 [3]) and various traffic infractions (appeal No. 2013-1828 S CR), driving while intoxicated (common law) (Vehicle and Traffic Law § 1192 [3]), making a punishable false written statement (Penal Law § 210.45), and a traffic infraction (appeal No. 2013-1909 S CR), criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03) (appeal No. 2013-1912 S CR), and aggravated driving while intoxicated (per se) (Vehicle and Traffic Law § 1192 [2-a] [a]) and various traffic infractions (appeal No. 2013-1914 S CR), respectively.

Defendant's claim that the District Court failed to advise him of the immigration consequences of his guilty pleas is lacking in merit. Assuming that the District Court was under a duty to inform defendant of the immigration consequences of his guilty pleas to the various misdemeanors and traffic violations, an issue left open in People v Peque (22 NY3d 168, 197, n 9 [2013]), the record shows that, in fact, the court did so, thereby properly discharging whatever duty it may have had (see Peque, 22 NY3d at 197; see also CPL 220.50 [7]). Further, to the extent that defendant's ineffective assistance of counsel claim is based upon facts contained in his CPL 440.10 motion, which motion was denied, the claim is not properly before this court, as his motion for leave to appeal from that order was denied (see People v Johnson, 112 AD3d 969 [2013]; People v Bassou, 44 Misc 3d 131[A], 2014 NY Slip Op 51078[U] [App Term, 1st Dept 2014]). On the existing record, to the extent it permits review, we find that defendant has failed [*2]to demonstrate that he was deprived of the effective assistance of counsel (see People v Santer, 30 AD3d 1129 [2006]).

Accordingly, the judgments of conviction are affirmed.

Marano, P.J., Iannacci and Connolly, JJ., concur.

Decision Date: July 01, 2015