People v Gomez (2020 NY Slip Op 04518) People v Gomez 2020 NY Slip Op 04518 Decided on August 13, 2020 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 August 13, 2020 Friedman, J.P., Gische, Webber, Gesmer, Oing, JJ. 11570 158/15 [*1] The People of the State of New York, Respondent, vGerman Gomez, Defendant-Appellant. Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Christopher Michael Pederson of counsel), for respondent. Judgment, Supreme Court, Bronx County (Raymond L. Bruce, J.), rendered October 3, 2016, convicting defendant, upon his plea of guilty, of attempted criminal possession of a weapon in the second degree, and sentencing him to a term of two years, affirmed. Defendant's claim of ineffective assistance of counsel is not reviewable on direct appeal, because the existing record does not make "irrefutably" clear "that a right to counsel violation has occurred" (People v McLean, 15 NY3d 117, 121 [2010]). Specifically, the existing record does not reveal the advice concerning the immigration consequences of the plea that defendant actually received from his trial counsel. Rather, the record reflects only counsel's representation to the court that he had discussed all "possible consequences" with defendant, counsel's refusal of the court's offer of additional time to research the plea's immigration consequences, and counsel's assurance to the court that "[w]e've looked into everything." Without further development of the record by way of a CPL 440.10 motion, it cannot be determined exactly what discussions were had with defendant regarding the immigration consequences of his plea, including whether counsel mis-advised defendant. Contrary to defendant's argument, his trial counsel's general representations to the court that defendant had been advised of "all possible consequences" of the plea and that "[w]e've looked into everything" do not establish, under binding precedent of the Court of Appeals, that counsel failed to advise defendant that he would be subject to mandatory deportation based on this plea. The Court of Appeals has held repeatedly that "the lack of an adequate record bars review on direct appeal not only where vital evidence is plainly absent . . . but wherever the record falls short of establishing conclusively the merit of the defendant's claim . . . . Thus where the record does not make clear, irrefutably, that a right to counsel violation has occurred, the claimed violation can be reviewed only on a post-trial motion under CPL 440.10, not on direct appeal" (McLean, 15 NY3d at 121 [emphasis added]). Cases in which the record on direct appeal affords irrefutable proof of counsel's ineffectiveness are "exception[al]" (People v Nesbitt, 20 NY3d 1080, 1082 [2013]; see also People v Bell, 48 NY2d 933, 934 [1979] [the record on direct appeal "establishes beyond peradventure . . . clear ineffectiveness of counsel"]). Only a few weeks ago, the Court of ...
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals