        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1158
KA 12-00136
PRESENT: SCUDDER, P.J., CENTRA, CARNI, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RAMADHAN RAJAB, DEFENDANT-APPELLANT.


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.


     Appeal from a judgment of the Supreme Court, Monroe County
(Daniel J. Doyle, J.), rendered October 24, 2011. The judgment
convicted defendant, upon his plea of guilty, of rape in the first
degree.

     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
                                 -2-                          1158
                                                         KA 12-00136

unclear or uncertain’ ” (People v Hernandez, 22 NY3d 972, 975, cert
denied ___ US ___, 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 NY2d
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).




Entered:   November 13, 2015                   Frances E. Cafarell
                                               Clerk of the Court
