People v Rauf

People v Rauf 2011 NY Slip Op 08682 Decided on December 1, 2011 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 December 1, 2011
Tom, J.P., Andrias, Catterson, Abdus-Salaam, Román, JJ.
6216 571/02

[*1]The People of the State of New York, Respondent,

v

Abdul Rauf, Defendant-Appellant.




Jorge Guttlein & Associates, New York (Jorge Guttlein of
counsel), for appellant.
Eric T. Schneiderman, Attorney General, New York (Jodi A.
Danzig of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Phylis Skloot Bamberger, J.), rendered January 15, 2004, convicting defendant, upon his plea of guilty, of grand larceny in the second degree and criminal diversion of prescription medications and prescriptions in the third degree, and sentencing him to an aggregate term of 1½ to 4½ years, with restitution in the amount of $200,281.29, unanimously affirmed.

Defendant's argument that the trial court abused its discretion in sua sponte rescinding its oral decision granting defendant's motion to withdraw his guilty plea is unpreserved, and we decline to review it in the interest of justice. As an alternative holding, we reject defendant's contention on the merits. A nisi prius court "has the inherent power, sua sponte or on motion of a party, to reconsider or vacate its prior decision before issuing an order thereon" (Hulett v Niagara Mohawk Power Corp., 1 AD3d 999, 1003 [2003]; see also American Re-Ins. Co. v SGB Universal Bldrs. Supply, 160 AD2d 586 [1990]). Moreover, the court explained that, upon review of the transcripts, it found that issues relating to the plea withdrawal motion required a more developed record prior to determination. Our review of that record indicates that defendant's plea was entered knowingly, voluntarily, and intelligently (see People v Fiumefreddo, 82 NY2d 536, 543 [1993]).

The record indicates that defendant's counsel provided meaningful representation (see People v Benevento, 91 NY2d 708, 712-714 [1998]). In particular, the favorable nature of the plea bargain demonstrates that defendant received effective assistance (see People v Ford, 86 NY2d 397, 404 [1995]).

Defendant's argument that his trial counsel misadvised him as to the deportation consequences of a conviction (see Padilla v Kentucky, __ US __, 130 S Ct 1473 [2010]) is unavailing. Defendant never argued that he would not have pleaded guilty if he had been [*2]properly advised. Accordingly, defendant has failed to make the showing of prejudice required to prevail on his claim of ineffective assistance of counsel (see Padilla, __ US at __, 130 S Ct at 1483; People v McDonald, 1 NY3d 109, 115 [2003]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 1, 2011

CLERK