People v Diaz

People v Diaz 2012 NY Slip Op 00717 Decided on February 2, 2012 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 2, 2012
Tom, J.P., Friedman, Freedman, Richter, Manzanet-Daniels, JJ.
6357 5387/06

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

v

Richard Diaz, Defendant-Appellant.




Richard M. Greenberg, Office of the Appellate Defender, New
York (Rosemary Herbert of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Vincent
Rivellese of counsel), for respondent.

Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered June 1, 2007, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the third degree, and sentencing him to a term of 2½ years, unanimously affirmed.

Defendant did not preserve his challenge to the voluntariness of his guilty plea, and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits. While the duty to advise a defendant of the possibility of deportation before accepting a plea of guilty is imposed on the trial courts by statute (CPL 220.50[7]), the court's "failure to do so does not affect the voluntariness of a guilty plea" (People v Ford, 86 NY2d 397, 404, n [1995]). Here, the court told defendant, "if you're not here legally or if you have any immigration issues these felony pleas could adversely affect you." This warning sufficed to apprise defendant that the consequences of his guilty plea extended to his immigration status.

Contrary to defendant's argument, the duties of a trial court upon accepting a guilty plea are not expanded by Padilla v Kentucky (559 US __, 130 S Ct 1473 [2010]), which deals exclusively with the duty of defense counsel to advise a defendant of the consequences of pleading guilty when it is clear that deportation is mandated. We note that the issue of the effectiveness of trial counsel's representation based on his failure to advise defendant that the plea mandated deportation is not before us, having been resolved by an order of the motion court finding that as a result defendant sustained no prejudice (Hill v Lockhart, 474 US 52, 59 [1985]; Strickland v Washington, 466 US 668, 694 [1984]), from which leave to appeal to this Court has [*2]been denied. Contrary to defendant's additional contention, nothing in the court's allocution misleadingly suggested that defendant would not be deported as a result of pleading guilty (see e.g. Zhang v United States, 506 F3d 162, 169 [2d Cir 2007]).

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

ENTERED: FEBRUARY 2, 2012

CLERK