| People v Bent |
| 2013 NY Slip Op 05250 [108 AD3d 882] |
| July 11, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vDwayne Bent, Appellant. |
—[*1] Nicole M. Duve, District Attorney, Canton (Jonathan L. Becker of counsel), forrespondent.
Stein, J. Appeal, by permission, from an order of the County Court of St. LawrenceCounty (Richards, J.), entered March 22, 2011, which denied defendant's motionpursuant to CPL 440.10 to vacate the judgment of conviction.
Defendant is a citizen of Jamaica, West Indies, who has resided in this country sincehe was nine years old. In 2009, defendant pleaded guilty to criminal possession of acontrolled substance in the fifth degree in full satisfaction of a seven-count indictmentpending against him. In accordance with the plea agreement, defendant was sentenced tofive years of probation. After federal authorities commenced deportation proceedingsagainst him, defendant moved pursuant to CPL 440.10 to vacate the judgment ofconviction. County Court denied the motion without a hearing and defendant nowappeals by permission.
Relying upon the rule set forth in Padilla v Kentucky (559 US 356, 368-369 [2010]), defendant argues that he was denied his right tothe effective assistance of counsel under the Sixth Amendment (see US Const 6thAmend) due to counsel's failure to advise him of the deportation consequences of hisplea (see People v Carty, 96AD3d 1093, 1093-1094 [2012]). Notwithstanding our prior holding that this ruleapplies retroactively (see Peoplev Rajpaul, 100 AD3d 1183 [2012]; People v Baret, 99 AD3d 408, 409 [2012]), the UnitedStates Supreme Court has declared that Padilla is a "new rule," which is notretroactive (Chaidez v United States, 568 [*2]US—, 133 S Ct 1103 [2013]). Here, inasmuch as defendant's conviction was finalprior to Padilla, the rule set forth therein is inapplicable. Therefore, defendant'smotion to vacate the judgment of conviction was properly denied.
Peters, P.J., Rose and Garry, JJ., concur. Ordered that the order is affirmed.