| People v Rauf |
| 2011 NY Slip Op 08682 [90 AD3d 422] |
| Dcmbr 1, 2011 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v AbdulRauf, Appellant. |
—[*1] Eric T. Schneiderman, Attorney General, New York (Jodi A. Danzig of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Phylis Skloot Bamberger, J.), rendered January15, 2004, convicting defendant, upon his plea of guilty, of grand larceny in the second degree andcriminal diversion of prescription medications and prescriptions in the third degree, andsentencing him to an aggregate term of 1½ to 4½ years, with restitution in the amountof $200,281.29, unanimously affirmed.
Defendant's argument that the trial court abused its discretion in sua sponte rescinding its oraldecision granting defendant's motion to withdraw his guilty plea is unpreserved, and we declineto review it in the interest of justice. As an alternative holding, we reject defendant's contentionon the merits. A nisi prius court "has the inherent power, sua sponte or on motion of aparty, to reconsider and vacate its prior decision before issuing an order thereon" (Hulett v Niagara Mohawk PowerCorp., 1 AD3d 999, 1003 [2003]; see also American Re-Ins. Co. v SGB UniversalBldrs. Supply, 160 AD2d 586 [1990]). Moreover, the court explained that, upon review ofthe transcripts, it found that issues relating to the plea withdrawal motion required a moredeveloped record prior to determination. Our review of that record indicates that defendant's pleawas entered knowingly, voluntarily, and intelligently (see People v Fiumefreddo, 82NY2d 536, 543 [1993]).
The record indicates that defendant's counsel provided meaningful representation (seePeople v Benevento, 91 NY2d 708, 712-714 [1998]). In particular, the favorable nature ofthe plea bargain demonstrates that defendant received effective assistance (see People vFord, 86 NY2d 397, 404 [1995]).
Defendant's argument that his trial counsel misadvised him as to the deportationconsequences of a conviction (see Padilla v Kentucky, 559 US —, 130 S Ct 1473[2010]) is unavailing. Defendant never argued that he would not have pleaded guilty if he hadbeen [*2]properly advised. Accordingly, defendant has failed tomake the showing of prejudice required to prevail on his claim of ineffective assistance ofcounsel (see Padilla, 559 US at —, 130 S Ct at 1483; People v McDonald, 1 NY3d 109,115 [2003]). Concur—Tom, J.P., Andrias, Catterson, Abdus-Salaam and RomÁn, JJ.