| People v Diaz |
| 2012 NY Slip Op 00717 [92 AD3d 413] |
| February 2, 2012 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Richard Diaz, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Vincent Rivellese of counsel), forrespondent.
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 inthe 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 wedecline 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 ofguilty is imposed on the trial courts by statute (CPL 220.50 [7]), the court's "failure to do so doesnot 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 issuesthese felony pleas could adversely affect you." This warning sufficed to apprise defendant thatthe 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 arenot expanded by Padilla v Kentucky (559 US —, 130 S Ct 1473 [2010]), whichdeals exclusively with the duty of defense counsel to advise a defendant of the consequences ofpleading guilty when it is clear that deportation is mandated. We note that the issue of theeffectiveness of trial counsel's representation based on his failure to advise defendant that theplea mandated deportation is not before us, having been resolved by an order of the motion courtfinding 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 appealto this Court has [*2]been denied. Contrary to defendant'sadditional contention, nothing in the court's allocution misleadingly suggested that defendantwould not be deported as a result of pleading guilty (see e.g. Zhang v United States, 506F3d 162, 169 [2d Cir 2007]). Concur—Tom, J.P., Friedman, Freedman, Richter andManzanet-Daniels, JJ.