Opinion
7819 Ind. 5449/14
12-06-2018
The PEOPLE of the State of New York, Respondent, v. Carlos RODRIGUEZ, Defendant–Appellant.
Christina A. Swarns, Office of the Appellate Defender, New York (Joseph M. Nursey of counsel), and Orrick Herrington & Sutcliffe, LLP, New York (Alyssa Barnard of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (R. Jeannie Campbell–Urban of counsel), for respondent.
Christina A. Swarns, Office of the Appellate Defender, New York (Joseph M. Nursey of counsel), and Orrick Herrington & Sutcliffe, LLP, New York (Alyssa Barnard of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (R. Jeannie Campbell–Urban of counsel), for respondent.
Friedman, J.P., Kapnick, Webber, Kahn, Kern, JJ.
Judgment, Supreme Court, New York County (Ronald A. Zweibel, J. at hearing; Mark Dwyer, J. at jury trial and sentencing), rendered August 1, 2016, convicting defendant of persistent sexual abuse and sentencing him, as a persistent violent felony offender, to a term of three years to life, unanimously affirmed.
We conclude, based on a record that includes a hearing on defendant's motion to dismiss the indictment in furtherance of justice, that defendant has not established that his attorney's allegedly deficient advice regarding plea negotiations caused prejudice to the extent required under the applicable federal and state standards (see Lafler v. Cooper, 566 U.S. 156, 164, 132 S.Ct. 1376, 182 L.Ed.2d 398 [2012] ; Missouri v. Frye, 566 U.S. 134, 147, 132 S.Ct. 1399, 182 L.Ed.2d 379 [2012] ; People v. Bank, 28 NY3d 131, 137–138, 65 N.E.3d 680 [2016] ). Before defendant's criminal court arraignment on charges of forcible touching and sexual abuse in the third degree, the prosecutor proposed a misdemeanor disposition. Assuming, without deciding, that counsel should have warned defendant that he could be indicted for persistent sexual abuse, and, if convicted, sentenced to a term of three years to life as a persistent violent felony offender, defendant has not established that the misdemeanor disposition would have actually been accepted by the court.