                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 30, 2015                    105803
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

RUFFEL PHIPPS,
                    Appellant.
________________________________


Calendar Date:   March 25, 2015

Before:   Lahtinen, J.P., McCarthy, Garry and Lynch, JJ.

                             __________


      Cappy Weiner, Kingston, for appellant, and appellant
pro se.

      James R. Farrell, District Attorney, Monticello (Katy
Schlichtman of counsel), for respondent.

                             __________


Lahtinen, J.P.

      Appeal from a judgment of the County Court of Sullivan
County (Labuda, J.), rendered October 2, 2012, convicting
defendant upon his plea of guilty of the crimes of rape in the
third degree and criminal sale of a controlled substance in the
third degree.

      Defendant was charged, in one indictment, with rape in the
third degree and endangering the welfare of a child and,
approximately two months later, in a separate indictment, with
two counts of criminal sale of a controlled substance in the
third degree. Thereafter, defendant pleaded guilty, in
satisfaction of both indictments, to rape in the third degree and
one count of criminal sale of a controlled substance in the third
                              -2-                105803

degree and signed two appeal waivers. Following defendant's
guilty plea, but prior to sentencing, he moved, pro se, to
withdraw his plea and for the assignment of new counsel. County
Court denied defendant's motion to withdraw his guilty plea, but
assigned defendant a new attorney. Defendant subsequently moved
again, this time through counsel, to withdraw his guilty plea
contending, among other things, that he "will be deported as a
result of this conviction." However, defendant thereafter
withdrew said motion, as a result of which it was dismissed by
County Court. Defendant was then sentenced, as a second felony
offender, to an aggregate prison term of four years, with 10
years of postrelease supervision. Defendant appeals,
challenging, among other things, the voluntariness of both his
plea and the waiver of his right to appeal.

      As the record fails to indicate that County Court
distinguished between defendant's right to appeal and those
rights forfeited upon his guilty plea, we conclude that defendant
did not understand the implications of the appeal waivers and
they are therefore unenforceable (see People v Williford, 124
AD3d 1076, 1077 [2015]; compare People v Balbuena, 123 AD3d 1384,
1385 [2014]). Although the two written waivers, which were
signed by defendant in open court, distinguished these rights and
stated that defendant had a full opportunity to discuss the
waivers with his attorney, County Court made no inquiry as to
whether defendant understood them or whether his counsel had in
fact discussed the waivers with him (see People v Vences, 125
AD3d 1050, 1051-1052 [2015]; compare People v McCaskill, 76 AD3d
751, 752 [2010]). Defendant next contends that his plea was
involuntary because County Court did not inform him, as a citizen
of Jamaica, of the potential deportation consequences of his
plea. However, because defendant withdrew his motion to withdraw
his plea, this issue is unpreserved for our review (see People v
Balbuena, 123 AD3d at 1385; People v Royce, 122 AD3d 1008, 1009
[2014]; People v Jones, 114 AD3d 1080, 1081 [2014], lv denied 24
NY3d 961 [2014]; compare People v Rupnarain, 123 AD3d 1372, 1373
[2014]). To the extent that defendant further argues that his
plea was involuntary based on County Court's failure to notify
him that he would be required to register as a sex offender, we
note that this issue is likewise unpreserved and, in any event,
such registration is a collateral consequence of his plea and
                              -3-                  105803

thus does not undermine its voluntariness (see People v Wright,
53 AD3d 963, 963 [2008], lv denied 11 NY3d 710 [2008]; People v
Nash, 48 AD3d 837, 837-838 [2008], lv denied 10 NY3d 937 [2008]).


      Defendant's contentions that he received ineffective
assistance of counsel due to his attorney's failure to advise him
of the immigration consequences and the sex offender registration
requirement of his plea, as well as his counsel's alleged failure
to present County Court with a letter from the rape victim's
mother, are likewise unavailing. These claims are unpreserved
due to defendant's withdrawal of his motion to withdraw his
guilty plea and, although defendant raised ineffective assistance
of counsel claims in his two CPL article 440 motions, he has not
sought permission to appeal their denial by County Court
(see People v Livziey, 117 AD3d 1341, 1342 [2014]; compare People
v Rupnarain, 123 AD3d at 1373). To the extent that defendant
raises speedy trial and due process arguments, they are
unpreserved (see People v Chinn, 104 AD3d 1167, 1169 [2013], lv
denied 21 NY3d 1014 [2013]), and his remaining contentions, to
the extent that they are properly before us, lack merit.

     McCarthy, Garry and Lynch, JJ., concur.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
