PEOPLE v. PADILLA (2022)

Judgment, Supreme Court, Bronx County (Barbara F. Newman, J.), rendered December 22, 2010, as amended January 24, 2018 (Ralph Fabrizio, J.), convicting defendant, upon his plea of guilty, of attempted criminal possession of a weapon in the second degree, and sentencing him to a term of seven years, with five years postrelease supervision, unanimously modified, on the law, to the extent of reducing the term of postrelease supervision to three years, and otherwise affirmed.

Defendant's waiver of his right to appeal was invalid because the court failed to provide defendant with any explanation of the rights he was waiving (see People v. Bradshaw, 18 N.Y.3d 257, 264, 938 N.Y.S.2d 254, 961 N.E.2d 645 [2011]).  Nonetheless, the court properly denied defendant's suppression motion.  There is no basis for disturbing the court's credibility determinations, including its evaluation of inconsistencies in testimony (see People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380 [1977]).  Evidence credited by the court established that the police had reasonable suspicion that defendant was armed, and thus had the authority to frisk him (see People v. Diaz, 232 A.D.2d 289, 648 N.Y.S.2d 562 [1st Dept. 1996], lv denied 89 N.Y.2d 944, 655 N.Y.S.2d 895, 678 N.E.2d 508 [1997]).

Defendant misrepresented his citizenship when he answered affirmatively after being sworn under oath at the plea proceeding that he was “Gadiel Padilla,” who is admittedly a U.S. citizen by virtue of having been born in Puerto Rico. Defendant now conclusorily claims that he is Nery Alfonso Ortiz Nunez, purportedly a native of the Dominican Republic (see People v. Brazil, 123 A.D.3d 466, 467, 998 N.Y.S.2d 181 [1st Dept. 2014], lv denied 25 N.Y.3d 1198, 16 N.Y.S.3d 521, 37 N.E.3d 1164 [2015]).  Defendant knew that he was misrepresenting to the court his identity and, effectively, his status, by affirmatively acknowledging under oath that he was Gadiel Padilla, and he should not now be allowed to benefit from that fraud on the court (see People v. Floyd, 177 A.D.2d 310, 313, 576 N.Y.S.2d 228 [1st Dept. 1991], lv denied 79 N.Y.2d 947, 583 N.Y.S.2d 201, 592 N.E.2d 809 [1992]).

We perceive no basis for reducing the sentence.  However, the People concede that the maximum allowable postrelease supervision on a class D violent felony is three years (Penal Law § 70.45[2][e]).  Therefore, the period of supervision is reduced accordingly.

The Decision and Order of this Court entered herein on March 17, 2022 is hereby recalled and vacated (see M–2022–1304 decided simultaneously herewith).