People v. Brooks

• Decision Date: 14 October 2020
• Docket Number: 2017–01759,Ind. No.1879/16
• Citation: 130 N.Y.S.3d 365 (Mem),187 A.D.3d 931
• Parties: The PEOPLE, etc., Respondent, v. David BROOKS, Appellant.
• Court: New York Supreme Court — Appellate Division

187 A.D.3d 931

130 N.Y.S.3d 365 (Mem)

The PEOPLE, etc., Respondent,

v.David BROOKS, Appellant.

2017–01759

Ind. No.1879/16

Supreme Court, Appellate Division, Second Department, New York.

Submitted—June 19, 2020

October 14, 2020

Steven A. Feldman, Manhasset, NY, for appellant.

Timothy D. Sini, District Attorney, Riverhead, N.Y. (Thomas C. Costello of counsel), for respondent.

WILLIAM F. MASTRO, J.P., LEONARD B. AUSTIN, JOHN M. LEVENTHAL, ROBERT J. MILLER, JJ.

DECISION & ORDER

Appeal by the defendant from a judgment of the County Court, Suffolk County (Timothy P. Mazzei, J.), rendered January 23, 2017, convicting him of attempted identity theft in the first degree, upon his plea of guilty, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant contends that his plea of guilty was involuntary because the County Court did not advise him of the possible immigration consequences of his plea (see generally People v. Peque, 22 N.Y.3d 168, 980 N.Y.S.2d 280, 3 N.E.3d 617 ). Under the circumstances of this case, where nothing in the record contradicts the defendant's statement made under oath, at the plea proceeding, that he was a citizen of the United States, or the information in the Department of Probation Presentence Investigation Report indicating that the defendant was a United States citizen, we reject the defendant's contention (see People v. Williams, 178 A.D.3d 1095, 115 N.Y.S.3d 401 ; People v. Tull, 159 A.D.3d 1387, 1387–1388, 72 N.Y.S.3d 675 ).

Although the County Court lacked discretion at sentencing to defer the mandatory surcharge (see People v. Jones, 26 N.Y.3d 730, 732–733, 27 N.Y.S.3d 431, 47 N.E.3d 710 ), the court's error in this regard, which was in the defendant's favor, does not entitle him to the relief he seeks (see People v. Himonitis, 174 A.D.3d 738, 739, 102 N.Y.S.3d 445 ; People v. Tietje, 171 A.D.3d 1221, 1222, 96 N.Y.S.3d 878 ).

MASTRO, J.P., AUSTIN, LEVENTHAL and MILLER, JJ., concur.