| People v Nunez |
| 2018 NY Slip Op 01257 |
| Decided on February 22, 2018 |
| 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 February 22, 2018
Tom, J.P., Kapnick, Webber, Oing, JJ.
5793 5435/13
v
Edison Nunez, Defendant-Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Michael J. Yetter of counsel), for respondent.
Judgment, Supreme Court, New York County (Charles H. Solomon, J.), rendered April 22, 2014, convicting defendant, upon his plea of guilty, of attempted burglary in the second degree and bail jumping in the second degree, and sentencing him to an aggregate term of two years, unanimously affirmed.
Defendant's ineffective assistance of counsel claim is unreviewable on direct appeal. Defendant claims he was deprived of effective assistance because his attorney misadvised him of the immigration consequences of his plea (see Padilla v Kentucky, 559 U.S. 356 [2010]). The record is insufficient to permit adequate review of defendant's claim. Accordingly, since defendant has not made a CPL 440.10 motion, the merits of the ineffectiveness claim may not be addressed on appeal (see People v Peque, 22 NY3d 168, 202-203 [2013]).
Defendant's constitutional challenge to his sentence is unpreserved (see People v Pena, 28 NY3d 727, 730 [2017]), and we decline to review it in the interest of justice. Defendant's valid waiver of the right to appeal forecloses his claim that the sentence was harsh and excessive. In any event, we perceive no basis for reducing the sentence.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 22, 2018
CLERK