| People v Andrews |
| 2013 NY Slip Op 05469 [108 AD3d 727] |
| July 24, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Churchill Andrews, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Joyce Slevin,and Solomon Neubort of counsel), for respondent. Immigrant Defense Project, New York, N.Y. (Alisa Wellek of counsel), amicuscuriae.
Appeal by the defendant, by permission, from an order of the Supreme Court, KingsCounty (Ferdinand, J.), dated April 20, 2011, which denied his motion pursuant to CPL440.10 to vacate a judgment of the same court rendered September 3, 2008, convictinghim of criminal sale of a controlled substance in the fifth degree, upon his plea of guilty,and imposing sentence.
Ordered that the order is affirmed.
On March 14, 2008, the defendant, a native of Guyana and a lawful permanentresident of the United States, pleaded guilty to criminal sale of a controlled substance inthe fifth degree, upon the understanding that if he successfully completed drug treatment,his plea would be vacated. The defendant failed to complete drug treatment and, onSeptember 3, 2008, was sentenced to a term of six months of imprisonment. Thereafter,the Immigration and Customs Enforcement Unit of the United States Department ofHomeland Security initiated removal proceedings against the defendant on the groundthat the conviction was a deportable offense. On September 24, 2010, the defendant,citing Padilla v Kentucky (559 US 356 [2010]), moved to vacate the convictionon the ground that he was deprived of the right to the effective assistance of counsel byhis attorney's alleged failure to advise him of the immigration consequences of his plea.The Supreme Court summarily denied the defendant's motion, based upon its conclusionthat Padilla did not apply retroactively, and, additionally, upon finding that thedefendant failed to show that his defense was prejudiced by defense counsel's purportedfailure to advise him of the deportation consequences of his plea. By decision and orderon motion dated August 17, 2011, a Justice of this Court granted leave to appeal from theSupreme Court's order.
On February 20, 2013, the United States Supreme Court, in Chaidez v UnitedStates (568 US —, 133 S Ct 1103 [2013]), held that Padilla, decidedon March 31, 2010, announced a new rule pursuant to the principles set forth inTeague v Lane (489 US 288 [1989]), that the Sixth Amendment requires defenseattorneys to inform noncitizen clients of the deportation risks of guilty pleas. As such, theSupreme Court concluded that the rule does not apply retroactively to persons whose[*2]convictions became final before Padilla wasdecided.
Here, pursuant to Chaidez, the defendant cannot benefit from thePadilla rule, as his conviction became final, at the latest, on October 5, 2009, the lastdate on which he would have been permitted to seek leave to file a late notice of appeal.
The defendant and amicus curiae urge this Court to nonetheless apply Padillaretroactively pursuant to the authority in Danforth v Minnesota (552 US 264[2008]), since the defendant also invokes his rights under the New York Constitution.In Danforth, the Supreme Court stated that the general rule enunciated inTeague of nonretroactive application of new constitutional rules of criminalprocedure to cases on federal habeas review did not constrain the authority of statecourts, when reviewing their own state criminal convictions, to give broader effect to thenew rules than is required under Teague. However, we decline to do so.
In People v Pepper (53 NY2d 213 [1981], cert denied sub nom. NewYork v Utter, 454 US 1162 [1982]), the Court of Appeals addressed the issue ofwhether a new rule should be retroactively applied under the New York Constitution. Itrecognized three factors a court should weigh to determine whether to retroactively applya new rule: (1) the purpose to be served by the new standard, (2) the extent to which lawenforcement authorities relied upon the old standard, and (3) the effect a retroactiveapplication of the new standard would have on the administration of justice (see id.at 220). The Court of Appeals explained that "the extent of the reliance and thenature of the burden on the administration of justice are of substantial significance onlywhen the answer to the retroactivity question is not to be found in the purpose of the newrule itself" (id.). Thus, a new rule that goes "to the heart of a reliabledetermination of guilt or innocence" will be retroactively applied "where otherwise therecould be a complete miscarriage of justice" (id. at 221). However, a new rulewhich is "only collateral to or relatively far removed from the fact-finding process attrial" (id.), will have only prospective application. Although the Supreme Courtin Padilla held that the Sixth Amendment requires criminal defense counsel toinform their clients whether a guilty plea carries a risk of deportation, this new rule,rather than going to the heart of a reliable determination of guilt or innocence, insteadconcentrates on the defendant's appreciation of the immigration consequences that mayflow from an otherwise proper plea allocution (see People v Marshall, 39 Misc3d 1214[A], 2013 NY Slip Op 50614[U] [Sup Ct, Bronx County 2013]).
Retroactive application of Padilla is also not warranted under the second andthird Pepper factors. With regard to law enforcement reliance, prior toPadilla, a defendant could prevail on an ineffective-assistance-of-counsel claimonly if it was established that counsel rendered incorrect advice regarding theimmigration consequences of the guilty plea and that the defendant was prejudicedthereby (see People vMcDonald, 1 NY3d 109 [2003]). The failure to advise a defendant of thepossibility of deportation did not constitute ineffective assistance of counsel (seePeople v Ford, 86 NY2d 397 [1995]), and such failure to advise did not "affect thevoluntariness of a plea of guilty or the validity of a conviction" (CPL 220.50 [7]). Thus,under the old standard, prosecutors could recommend acceptance of plea allocutionseven where the defendant had not been advised of the immigration consequences ofentering into the plea (see People v Marshall, 39 Misc 3d 1214[A], 2013 NY SlipOp 50614[U] [2013]). As to the third factor, retroactive application of the Padillarule would potentially lead to an influx of CPL 440.10 motions to vacate the convictionsof defendants whose guilty pleas were properly entered and accepted by courts under theold standard (cf. Policano vHerbert, 7 NY3d 588, 604 [2006]), thus adversely affecting the criminal justicesystem. Accordingly, we further find that under New York law, the Padilla ruleshould not be retroactively applied to cases like this one where the convictions becamefinal prior to March 31, 2010, the date Padilla was decided.
Accordingly, the Supreme Court did not err in denying the defendant's motionpursuant to CPL 440.10 to vacate his judgment of conviction on the ground ofineffective assistance of counsel.
The parties' remaining contentions have been rendered academic by ourdetermination. Eng, P.J., Dillon, Austin and Sgroi, JJ., concur. [Prior Case History:2011 NY Slip Op 31216(U).]