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