                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered:   March 3, 2016                   106111
                                                       107229
________________________________

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

RUBEN M. REBELO,
                    Appellant.
________________________________


Calendar Date:   January 7, 2016

Before:   Peters, P.J., Garry, Rose and Lynch, JJ.

                             __________


     Teresa C. Mulliken, Harpersfield, for appellant.

      Richard D. Northrup Jr., District Attorney, Delhi (John L.
Hubbard of counsel), for respondent.

                             __________


Garry, J.

      Appeals (1) from a judgment of the County Court of Delaware
County (Becker, J.), rendered July 1, 2013, convicting defendant
upon his plea of guilty of the crime of criminal possession of a
controlled substance in the fifth degree, and (2) by permission,
from an order of said court, entered November 24, 2014, which
denied defendant's motion pursuant to CPL 440.10 to vacate the
judgment of conviction, without a hearing.

      In April 2013, in the course of a traffic stop in the Town
of Harpersfield, Delaware County, defendant was arrested after
drugs were found on his person and also in the vehicle in which
he was a passenger. A preplea probation report was prepared, and
thereafter, in July 2013, defendant executed a waiver of
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                                                 107229

indictment and consented to be prosecuted by a superior court
information charging him with various counts arising from the
incident. On the same date, in full satisfaction of the charges,
defendant pleaded guilty to one count of criminal possession of a
controlled substance in the fifth degree and executed an appeal
waiver. He was sentenced in accord with his plea agreement to a
split sentence of 90 days of incarceration and five years of
probation. Defendant's subsequent motion to vacate the judgment
of conviction pursuant to CPL 440.10 was denied without a
hearing. He now appeals from the judgment of conviction and, by
permission, from the denial of his CPL 440.10 motion.

      Defendant contends that he was deprived of the effective
assistance of counsel as he was erroneously advised that he was
eligible for a youthful offender adjudication and as counsel
failed to adequately advise him of the deportation consequences
of his plea. At the outset, these claims survive defendant's
uncontested appeal waiver only to the extent that they impact the
voluntariness of his plea (see People v Livziey, 117 AD3d 1341,
1342 [2014]; People v Trombley, 91 AD3d 1197, 1201 [2012], lv
denied 21 NY3d 914 [2013]; People v Leonard, 63 AD3d 1278, 1278
[2009], lv denied 13 NY3d 797 [2009]). Further, although a
defendant is ordinarily required to preserve such a claim through
an appropriate postallocution motion, preservation is not
required where, as here, there is no practical opportunity to do
so prior to sentencing (see People v Peque, 22 NY3d 168, 183
[2013]; People v Williams, 123 AD3d 1376, 1377 [2014]).1

      Defendant was ineligible for youthful offender treatment at
the time of the underlying proceedings due to a prior youthful
offender adjudication (see CPL 720.10 [2] [c]). As he now
contends, it appears from the record that both defense counsel
and County Court mistakenly believed that he remained eligible.
However, the court clearly and repeatedly advised that he would
not be granted a youthful offender adjudication; the court


    1
        Defendant's arraignment upon the superior court
information, plea and sentencing all occurred during a single,
uninterrupted proceeding before County Court.
                                -3-                  106111
                                                     107229

expressly stated this three times prior to the plea allocution.
Nonetheless, defendant chose to proceed. In these circumstances,
the misapprehension as to defendant's eligibility was rendered
irrelevant by the court's clear and repeated warnings.
Accordingly, we find that defendant's plea was voluntary (see
generally People v Conceicao, 26 NY3d 375, 383 [2015]; People v
Chaney, 72 AD3d 1194, 1196 [2010]).

      Defendant's claim that he was not warned that he would be
deported as a consequence of the plea is also belied by the
record. Both prior to and during the course of the plea
allocution, and again before pronouncing sentence, County Court
expressly advised defendant that a potential consequence of his
plea would be his removal from the country; this was described in
the initial proceedings as a "likely result".2 Thus, defendant
was adequately apprised of the potential consequence of
deportation that he faced as a result of his plea (see People v
Castro, 133 AD3d 986, 987 [2015]; People v Achouatte, 91 AD3d
1028, 1029 [2012], lv denied 18 NY3d 954 [2012], cert denied 568
US ___, 133 S Ct 216 [2012]).

      Finally, we find that defendant's claims are capable of
being resolved by reference to the record on direct appeal and,
thus, County Court did not err in denying defendant's CPL 440.10
motion without a hearing (see People v Satterfield, 66 NY2d 796,
799 [1985]; People v LaPierre, 108 AD3d 945, 946 [2013]).

        Peters, P.J., Rose and Lynch, JJ., concur.




    2
        It appears that defendant had also conferred with
separate counsel relative to his immigration status following his
prior conviction and youthful offender designation.
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                                             107229

ORDERED that the judgment and order are affirmed.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
