People
v.
Rosario

Supreme Court, Appellate Division, First Department, New York.Mar 29, 2012
941 N.Y.S.2d 122 (N.Y. App. Div. 2012)
941 N.Y.S.2d 12293 A.D.3d 605N.Y.S.2dA.D.3d

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2012-03-29

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.


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.

MAZZARELLI, J.P., ANDRIAS, MOSKOWITZ, ACOSTA, ABDUS–SALAAM, JJ.

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 N.Y.2d 662, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ); People v. Doumbia, 45 A.D.3d 436, 437, 844 N.Y.S.2d 874 [2007], lv. denied 10 N.Y.3d 764, 854 N.Y.S.2d 326, 883 N.E.2d 1261 [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 F.3d 162, 169 [2d Cir.2007] ). To the extent that defendant is suggesting that Padilla v. Kentucky, 559 U.S. ––––, 130 S.Ct. 1473, 176 L.Ed.2d 284 [2010] expands the duties of a trial court upon accepting a guilty plea from a noncitizen, we reject that argument ( see People v. Diaz, 92 A.D.3d 413, 937 N.Y.S.2d 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 N.Y.3d 109, 115, 769 N.Y.S.2d 781, 802 N.E.2d 131 [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 N.Y.2d 272, 309 N.Y.S.2d 906, 258 N.E.2d 197 [1970] ).

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