People v Rosario

People v Rosario 2012 NY Slip Op 02394 Decided on March 29, 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 March 29, 2012
Mazzarelli, J.P., Andrias, Moskowitz, Acosta, Abdus-Salaam, JJ. 7222-
7222A 3486/06 4065/06

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

v

Carlos M. Rosario, Defendant-Appellant.




Robert S. Dean, Center for Appellate Litigation, New York
(Robin Nichinsky of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Bari L. Kamlet of
counsel), for respondent.

Judgments, Supreme Court, Bronx County (Efrain Alvarado, J. at pleas; Barbara F. Newman, J. at sentencing), rendered July 17, 2009, convicting defendant of two counts of criminal sale of a controlled substance in the third degree, and sentencing him to concurrent terms of one year, unanimously affirmed.

Defendant did not preserve his challenges to the voluntariness of his guilty pleas (see People v Lopez, 71 NY2d 662 [1988]); People v Doumbia, 45 AD3d 436, 437 [2007], lv denied 10 NY3d 764 [2008]), and we decline to review them in the interest of justice. As an alternative holding, we reject them on the merits.

Before accepting defendant's guilty pleas, the court warned him that his pleas would subject him to deportation proceedings and that he should "assume" he would be deported. We find nothing in the remainder of the plea colloquy that could have misled defendant into thinking that deportation would not be a consequence of his pleas (see Zhang v United States, 506 F3d 162, 169 [2d Cir 2007]). To the extent that defendant is suggesting that Padilla v Kentucky (559 US __, 130 S Ct 1473 [2010]) expands the duties of a trial court upon accepting a guilty plea from a noncitizen, we reject that argument (see People v Diaz, __ AD3d __, 937 NYS2d 225 [2012]).

Defendant's argument that his trial counsel misadvised him as to the deportation consequences of a conviction is unavailing, because defendant has not made the necessary showing of prejudice (see People v McDonald, 1 NY3d 109, 115 [2003]). Finally, defendant's responses to the court's questions at the plea proceeding demonstrate that he was able to speak and understand English and was not in need of an interpreter (see People v Ramos, 26 NY2d 272 [1970]).

In view of the foregoing, we find it unnecessary to reach any other issues.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. [*2]

ENTERED: MARCH 29, 2012

CLERK