| People v Soodoo |
| 2013 NY Slip Op 06034 [109 AD3d 1014] |
| September 25, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Sunil Soodoo, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano andSharon Y. Brodt of counsel), for respondent.
Appeal by the defendant, by permission, from an order of the Supreme Court,Queens County (Erlbaum, J.), dated February 22, 2011, which denied, without a hearing,his motion pursuant to CPL 440.10 to vacate a judgment of the same court (Joy, J.),rendered January 25, 1993, convicting him of grand larceny in the fourth degree, uponhis plea of guilty, and imposing sentence.
Ordered that the order is affirmed.
On January 4, 1993, the defendant, a Guyana native and lawful permanent resident ofthe United States, pleaded guilty to grand larceny in the fourth degree and, on January25, 1993, he was sentenced to an indeterminate term of imprisonment of one to threeyears. Thereafter, Immigration and Customs Enforcement of the United StatesDepartment of Homeland Security initiated removal proceedings against the defendanton the ground that the conviction was a deportable offense. On October 14, 2010, thedefendant moved to vacate the conviction on the ground that he was denied the right toeffective assistance of counsel, alleging both that his attorney failed to advise him of theimmigration consequences of his plea as required by Padilla v Kentucky (559 US356 [2010]), and that the attorney incorrectly advised him that there would be noimmigration consequences. The Supreme Court denied the defendant's motion, without ahearing, on the ground that, even assuming that Padilla applied retroactively, thedefendant's allegations were insufficient to show that his attorney failed to advise ormisadvised him as to the immigration consequences of his plea, or that his defense wasprejudiced thereby. By decision and order dated February 21, 2012, a Justice of thisCourt granted leave to appeal from the Supreme Court's order.
In Chaidez v United States (568 US —, 133 S Ct 1103 [2013]), theUnited States Supreme Court held that the rule stated in Padilla does not applyretroactively to persons whose convictions became final before Padilla wasdecided. Although the defendant argues, pursuant to Danforth v Minnesota (552US 264, 282 [2008]), that this Court should give broader retroactive effect to thePadilla rule than required under Teague v Lane (489 US 288 [1989]), wehave declined to do so (seePeople v Andrews, 108 AD3d 727 [2013]; see also People v Verdejo, 109 AD3d 138 [2013]).
Here, without the benefit of the Padilla rule, the alleged failure of thedefendant's [*2]attorney to advise him of the possibilitythat he might be deported as a result of his plea does not constitute deficient performanceunder either the federal or state constitution, since "the failure of counsel to warn [a]defendant of the possibility of deportation [does not] constitute ineffective assistance ofcounsel" (People v Ford, 86 NY2d 397, 404 [1995]).
The defendant's contention that his attorney's alleged failure to advise him of theplea's removal risks fell short of the professional norms of the day is unavailing since,prior to Padilla, "a lawyer's breach of those norms was constitutionally irrelevantbecause deportation was a collateral consequence" of the plea (Chaidez v UnitedStates, 568 US at — n 15, 133 S Ct at 1113 n 15).
The defendant's additional contention that his attorney misadvised him about theconsequences of his plea by assuring him that deportation was unlikely was unsupportedby any affidavits or other evidence, was made only after he was taken into custody by theimmigration authorities, and contradicted his assertion that his attorney failed to mentionthe possibility of deportation at all. Accordingly, the Supreme Court did not err indetermining that the petitioner's allegations that his attorney's performance was deficientin this matter did not warrant a hearing (see CPL 440.30 [4]; People v Smiley, 67 AD3d713 [2009]; People v ChiuMei Lan Kwok, 51 AD3d 814, 815 [2008]; People v Kabre, 29 Misc 3d 307, 322-323 [2010]; cf. People v Picca, 97 AD3d170, 178-179 [2012]; People v Williams, 72 AD3d 1347 [2010]). Nor did thecourt err in denying the defendant's request for the appointment of counsel, since thedefendant failed "in his papers [to] suggest[ ] a possible basis on the merits" (seePeople ex rel. Williams v La Vallee, 19 NY2d 238, 240-241 [1967]).
In any event, the defendant failed to sufficiently allege that the alleged deficiencieshad the requisite impact on his defense under either the federal or state standards. Hisallegations failed to raise an issue of fact as to whether an incentive to remain in theUnited States would have made it rational to reject the plea offer in favor of risking asentence of up to 12 additional years in prison by proceeding to trial (see Padilla vKentucky, 559 US at 372; People v Gooden, 34 Misc 3d 1210[A], 2012 NYSlip Op 50029[U], *6 [2012]; cf. People v Picca, 97 AD3d at 184; People v McKenzie, 4 AD3d437, 439-440 [2004]). Likewise, the record here provides no basis to conclude thatthe alleged lack of advice or misadvice was "egregious and prejudicial error" such that itdenied him meaningful representation (People v Benevento, 91 NY2d 708, 713[1998] [internal quotation marks omitted]; see People v Caban, 5 NY3d 143, 152 [2005]).
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. Angiolillo, J.P., Chambers, Roman and Hinds-Radix,JJ., concur.