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

808
KA 12-02287
PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                                MEMORANDUM AND ORDER

BANGALY D. CHELLEY, ALSO KNOWN AS AAFRICA,@
DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT B. HALLBORG, JR.,
OF COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (M. William
Boller, A.J.), rendered November 13, 2012. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a weapon
in the second degree.

     It is hereby ORDERED that the judgment so appealed from is unanimously
affirmed.

     Memorandum: Defendant, a noncitizen, appeals from a judgment
convicting him, upon his plea of guilty, of criminal possession of a weapon
in the second degree (Penal Law ' 265.03 [3]; see ' 265.02 [1]). Defendant
implicitly contends that the failure of Supreme Court to advise him that
he could be subject to deportation if he pleaded guilty renders his plea
involuntary (see People v Peque, 22 NY3d 168, 197). We conclude that
defendant=s contention is not preserved for our review (see CPL 470.05
[2]), and that, under the circumstances of this case, the narrow exception
to the preservation doctrine does not apply (cf. Peque, 22 NY3d at 182-183).
 It is undisputed that the presentence report stated that there was an
immigration detainer on file at the Erie County Holding Center and that
it was expected that defendant would face deportation proceedings when
released from incarceration. Thus, defendant failed to establish that
he Adid not know about the possibility of deportation during the . . .
sentencing proceeding[], [and thus that] he had no opportunity to withdraw
his plea based on the court=s failure to apprise him of potential
deportation@ (id. at 183; see generally CPL 220.60 [3]; People v Murray,
15 NY3d 725, 726-727). Although the waiver of the right to appeal does
not encompass defendant=s contention that the bargained-for sentence is
unduly harsh and severe (see People v Maracle, 19 NY3d
                                 -2-                              808
                                                          KA 12-02287

925, 928), we nevertheless reject that contention.




Entered:   August 8, 2014                      Frances E. Cafarell
                                               Clerk of the Court
