| People v Badia |
| 2013 NY Slip Op 03546 [106 AD3d 514] |
| May 16, 2013 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Antonio Badia, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Timothy C. Stone of counsel), forrespondent. Dawn M. Seibert, New York, for amici curiae.
Judgment, Supreme Court, New York County (Thomas Farber, J.), renderedNovember 13, 2008, convicting defendant, upon his plea of guilty, of criminalpossession of a controlled substance in the fifth and seventh degrees, and sentencing himto concurrent terms of one year, unanimously affirmed. Order, same court and Justice,entered on or about May 15, 2011, which denied defendant's CPL 440.10 motion tovacate the judgment, unanimously reversed, on the law, and the motion remanded forfurther proceedings in accordance with this memorandum.
Initially, we note that the People do not dispute the applicability, to defendant's CPL440.10 motion, of Padilla v Kentucky (559 US 356 [2010]), which was decidedwhile defendant's direct appeal was pending.
The motion court erred in holding that it was "constrained," by People v Diaz (7 NY3d831 [2006]), to deny defendant's Padilla-based motion to vacate hisconviction because defendant had been deported and was no longer within the court'sjurisdiction. Defendant's physical inability to appear in court was not a proper basis forfailing to entertain the motion (see [*2]People v Ventura, 17NY3d 675 [2011]). We take no position on the merits of defendant's motion.
With regard to the direct appeal, defendant has not shown any basis for reversal ofthe judgment of conviction. Concur—Gonzalez, P.J., Tom, Sweeny, Renwick andRichter, JJ.