People v. Balbuena, 123 A.D.3d 1384 (N.Y. App. Div. 2014). · Go Syfert
People v. Balbuena, 123 A.D.3d 1384 (N.Y. App. Div. 2014). Cases Citing This Book View Copy Cite
29 citation events (29 in the last 25 years) across 3 distinct courts.
Strongest positive: People v. Gayle (nyappdiv, 2023-11-02)
Treatment trajectory · 2015 → 2026 · click a year to view as-of
2015 2020 2026
Top citers, strongest first. 18 distinct citers. How cited ↗
discussed Cited as authority (rule) People v. Gayle
N.Y. App. Div. · 2023 · confidence medium
The court likewise alerted defendant that pleading guilty could result in certain immigration consequences and confirmed with her that, through her trial counsel, she had consulted with an immigration attorney prior to pleading guilty and that she "understood all the potential impacts of [her] plea upon [her] immigration status" ( see People v Peque , 22 NY3d at 182-183 ; People v Manzanales , 170 AD3d 752 , 753 [2d Dept 2019]; People v Balbuena , 123 AD3d 1384, 1385 [3d Dept 2014]).
discussed Cited as authority (rule) People v. Badmaxx
N.Y. App. Div. · 2019 · confidence medium
Regardless of the validity of defendant's appeal waiver, defendant's challenge to the voluntariness of his guilty plea, premised upon County Court's alleged failure to adequately advise him of the deportation consequences of his plea ( see generally CPL 220.50 [7]), is unpreserved for our review in the absence of an appropriate postallocution motion ( see People v Carroll , 172 AD3d 1821 , 1821 [2019], lv denied 34 NY3d 929 [2019]; People v Tariq , 166 AD3d 1211 , 1211-1212 [2018], lv denied 32 NY3d 1178 [2019]; People v Thomas , 153 AD3d 1445, 1446 [2017], lv denied 30 NY3d 1064 [2017]; Peopl…
discussed Cited as authority (rule) People v. Tariq
N.Y. App. Div. · 2018 · confidence medium
Defendant's contentions, however, are unpreserved for our review as the record does not reflect that he made an appropriate postallocution motion, nor did he make any statement during the plea colloquy that would trigger the exception to the preservation requirement ( see People v Thomas , 153 AD3d 1445, 1446 [2017], lv denied 30 NY3d 1064 [2017]; People v Balbuena , 123 AD3d 1384, 1385 [2014]).
cited Cited as authority (rule) People v. Tariq
N.Y. App. Div. · 2018 · confidence medium
People v Thomas , 153 AD3d at 1446 ; People v Balbuena , 123 AD3d 1384, 1386 [2014]).
discussed Cited as authority (rule) People v. Thomas
N.Y. App. Div. · 2017 · confidence medium
During the plea colloquy, County Court informed defendant of his potential immigration consequences resulting from his plea, and defendant expressly acknowledged in the written plea agreement that he had been afforded the opportunity to discuss with his attorney the potential deportation consequences resulting from his plea and that he understood that his conviction could result in, among other things, his deportation, exclusion from admission to the United States or denial of naturalization (see People v Lawrence, 148 AD3d 1472, 1474 [2017]; People v Rebelo, 137 AD3d at 1317 ; People v Balbue…
discussed Cited as authority (rule) People v. Thomas
N.Y. App. Div. · 2017 · confidence medium
During the plea colloquy, County Court informed defendant of his potential immigration consequences resulting from his plea, and defendant expressly acknowledged in the written plea agreement that he had been afforded the opportunity to discuss with his attorney the potential deportation consequences resulting from his plea and that he understood that his conviction could result in, among other things, his deportation, exclusion from admission to the United States or denial of naturalization ( see People v Lawrence , 148 AD3d 1472, 1474 [2017]; People v Rebelo , 137 AD3d at 1317 ; People v Bal…
discussed Cited as authority (rule) People v. Stewart
N.Y. App. Div. · 2016 · confidence medium
The defendant’s contentions regarding the Supreme Court’s failure to advise him of the immigration consequences of his pleas of guilty are unpreserved for appellate review, as he failed to raise the issues or move to withdraw his pleas despite indication on the record that he was aware of the immigration consequences of pleading guilty (see People v Peque, 22 NY3d 168, 182-183 [2013]; People v Balbuena, 123 AD3d 1384, 1385-1386 [2014]; cf. People v Odie, 134 AD3d 1132, 1133 [2015]; People v Charles, 117 AD3d 1073, 1074 [2014]).
discussed Cited as authority (rule) People v. Dobbs
N.Y. App. Div. · 2016 · confidence medium
Similarly, the valid waiver precludes his claim that his sentence is harsh and excessive (see People v Butler, 134 AD3d 1349 , 1349-1350 [2015], lv denied 27 NY3d 963 [ 2016]; People v Balbuena, 123 AD3d 1384, 1386 [2014]).
discussed Cited as authority (rule) People v. Moulton
N.Y. App. Div. · 2015 · confidence medium
As defendant’s waiver of the right to appeal is valid, his contention that the sentence imposed was harsh and excessive is precluded (see People v Balbuena, 123 AD3d 1384, 1386 [2014]; People v Jackson, 119 AD3d 1288 , 1288 [2014], lv denied 25 NY3d 1165 [2015]).
discussed Cited as authority (rule) People v. Griffin
N.Y. App. Div. · 2015 · confidence medium
As to defendant’s claim of ineffective assistance of counsel, certain of the arguments raised by defendant in this regard— including his assertion that defense counsel failed to conduct an adequate pretrial investigation (see People v Bahr, 96 AD3d 1165, 1166 [2012], lv denied 19 NY3d 1024 [2012]), seek out and interview alibi witnesses (see People v Varmette, 70 AD3d 1167, 1172 [2010], lv denied 14 NY3d 845 [2010]), pursue certain discovery demands and/or available defenses (see People v Davis, 114 AD3d 1003, 1003 [2014], lv denied 23 NY3d 962 [2014]), seek sanctions for alleged prosecuto…
discussed Cited as authority (rule) People v. Martinez
N.Y. App. Div. · 2015 · confidence medium
Although defendant’s challenge to the voluntariness of his plea survives his appeal waiver (see People v Seaberg, 74 NY2d 1, 10 [1989]), this issue is unpreserved for our review as the record does not reflect that he made an appropriate postallocution motion, and the exception to the preservation requirement is inapplicable (see People v Lopez, 71 NY2d 662, 665-666 [1988]; People v Balbuena, 123 AD3d 1384, 1385 [2014]).
discussed Cited as authority (rule) People v. Simmons
N.Y. App. Div. · 2015 · confidence medium
Ordered that the judgment is affirmed. * Although not raised by defendant, we agree with the People that his appeal waiver was valid (see People v Lopez, 6 NY3d 248, 256 [2006]; People v Burritt, 127 AD3d 1433, 1434 [2015]; People v Balbuena, 123 AD3d 1384, 1385 [2014]).
discussed Cited as authority (rule) People v. Bryant
N.Y. App. Div. · 2015 · confidence medium
Defendant’s appeal waiver was therefore not void as against public policy and, despite his further contentions, our review of the record confirms that it was made in a knowing, intelligent and voluntary manner (see People v Balbuena, 123 AD3d 1384, 1385 [2014]; People v Morrison, 106 AD3d at 1202).
cited Cited as authority (rule) People v. Neiles
N.Y. App. Div. · 2015 · confidence medium
He is, however, precluded from raising this claim by his valid waiver of the right to appeal (see People v Balbuena, 123 AD3d 1384, 1386 [2014]; People v Alexander, 123 AD3d 1340, 1341 [2014]).
discussed Cited as authority (rule) People v. Almeida
N.Y. App. Div. · 2015 · confidence medium
In light of his valid appeal waiver, his assertion that his sentence is harsh and excessive is precluded (see People v Balbuena, 123 AD3d 1384, 1386 [2014]; People v White, 119 AD3d 1286 , 1287 [2014], lv denied 24 NY3d 1222 [2015]).
discussed Cited "see" People v. Vellon
N.Y. App. Div. · 2015 · signal: see · confidence high
Finally, “[d]efendant’s valid appeal waiver precludes his argument [ ] that the agreed-upon sentence was harsh and excessive” (People v Toback, 125 AD3d at 1061; see People v Balbuena, 123 AD3d 1384, 1386 [2014]).
discussed Cited "see" People v. Vellon
N.Y. App. Div. · 2015 · signal: see · confidence high
Finally, “[d]efendant’s valid appeal waiver precludes his argument [ ] that the agreed-upon sentence was harsh and excessive” (People v Toback, 125 AD3d at 1061; see People v Balbuena, 123 AD3d 1384, 1386 [2014]).
discussed Cited "see, e.g." People v. Phipps
N.Y. App. Div. · 2015 · signal: compare · confidence medium
As the record fails to indicate that County Court distinguished between defendant’s right to appeal and those rights forfeited upon his guilty plea, we conclude that defendant did not understand the implications of the appeal waivers and they are therefore unenforceable (see People v Williford, 124 AD3d 1076, 1077 [2015]; compare People v Balbuena, 123 AD3d 1384, 1385 [2014]).
Retrieving the full opinion text from the archive…
The People of the State of New York
v.
Eduardo Balbuena
Appellate Division of the Supreme Court of the State of New York.
Dec 31, 2014.
123 A.D.3d 1384
Devine, Egan, Garry, Peters, Stein.
Cited by 20 opinions  |  Published
Peters, P.J.

Appeal from a judgment of the County Court of Ulster County (Williams, J.), rendered March 27, 2013, convicting defendant upon his plea of guilty of the crime of burglary in the second degree.

Defendant, a citizen of Mexico, was charged in an indictment with burglary in the second degree after he donned a mask and[*1385] used a master key, which he had acquired through his job, to enter an apartment occupied by an elderly couple. Under the plea offer proposed by the People, defendant would plead guilty to this charge and receive a sentence of five years in prison, to be followed by five years of postrelease supervision. County Court, however, would only approve the plea offer if it included a sentence of six years in prison, to be followed by five years of postrelease supervision. Defendant agreed to the longer sentence and entered a plea of guilty to burglary in the second degree. When the parties appeared for sentencing, County Court indicated its unwillingness to impose the agreed-upon sentence based upon information contained in the presentence investigation report. The court gave defendant the option either to withdraw his guilty plea and go to trial or to proceed with his guilty plea and receive a sentence of seven years in prison, to be followed by five years of postrelease supervision, and also to waive his right to appeal. Defendant elected to do the latter and executed a written waiver of the right to appeal that advised him, among other things, of the immigration consequences of his plea. He was sentenced to seven years in prison, to be followed by five years of postrelease supervision, and he now appeals.

Inasmuch as County Court properly distinguished the waiver of the right to appeal from the rights that defendant had automatically forfeited by virtue of his guilty plea, ensured that defendant understood the rights that he was waiving and had defendant execute a detailed written waiver in open court that indicated, among other things, that he had an opportunity to discuss the waiver with counsel, we find that the appeal waiver was knowing, voluntary and intelligent (see People v Lyman, 119 AD3d 968, 969 [2014]; People v Dyckman, 114 AD3d 994, 995 [2014], lv denied 23 NY3d 1036 [2014]). Defendant’s contention that his plea was involuntary because County Court did not inform him of the deportation consequences of the plea survives the waiver of his right to appeal (see People v Miner, 120 AD3d 1449, 1449 [2014]; People v Waite, 120 AD3d 1446, 1447 [2014]; People v Jackson, 119 AD3d 1288, 1288 [2014]). However, this issue was not preserved by a postallocution motion on such ground (see People v Sylvan, 107 AD3d 1044, 1045 [2013], lv denied 22 NY3d 1141 [2014]). Further, no exception to the preservation requirement is applicable because defendant had knowledge of his potential immigration consequences at the time of sentencing, as is evidenced by the written appeal waiver and the presentence investigation report (see People v Peque, 22 NY3d 168, 182-183 [2013]; People v Murray, 15 NY3d 725, 726-727 [2010]; People v Chelley, 120 AD3d 987, 988 [2014]; People v [*1386] Rodriguez, 115 AD3d 884, 884 [2014], lv denied 23 NY3d 1067 [2014]).

Defendant’s related claim of ineffective assistance of counsel is premised upon his counsel’s alleged failure to advise him of the potential deportation consequences of his guilty plea. Given that defendant signed an appeal waiver that informed him of the deportation consequences of his plea and indicated that his attorney had discussed this issue with him, we cannot, on this record, find merit in defendant’s argument. To the extent that defendant’s argument is based upon matters not appearing on the face of the record before us, defendant must pursue this claim by means of a CPL article 440 motion (see People v Peque, 22 NY3d at 202-203; People v Underdue, 89 AD3d 1132, 1134 [2011], lv denied 19 NY3d 969 [2012]). Finally, defendant’s claim that his sentence is harsh and excessive is precluded by his valid appeal waiver (see People v Borst, 121 AD3d 1424, 1425 [2014]; People v Smith, 121 AD3d 1131, 1132 [2014]).

Stein, Garry, Egan Jr. and Devine, JJ, concur.

Ordered that the judgment is affirmed.