| People v Tony C. |
| 2013 NY Slip Op 07055 [110 AD3d 1093] |
| October 30, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Tony C., Appellant. (Appeal No. 1.) The People of the State ofNew York, Appellant, v Tony C., Respondent. (Appeal No.2.) |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (Gary Fidel and Edward D.Saslaw of counsel), for respondent in appeal No. 1 and appellant in appeal No.2.
Appeals by (1) the defendant, by permission, as limited by his brief, from so much ofan order of the Supreme Court, Queens County (Lewis, J.), dated December 15, 2010, as,after a hearing, denied that branch of his motion which was pursuant to CPL 440.10 tovacate a judgment of the same court (Linakis, J.) rendered September 25, 1991,convicting him of criminal possession of a weapon in the third degree (two counts), uponhis plea of guilty, and imposing sentence (appeal No. 1), and (2) the People, as limited bytheir brief, from so much of an order of the same court (Lewis, J.) dated July 1, 2011, as,in effect, upon reargument, adhered to its original determination in the order datedDecember 15, 2010, sua sponte, in effect, vacating the conviction and adjudicating thedefendant a youthful offender (appeal No. 2).
Ordered that the order dated December 15, 2010, is affirmed insofar as appealedfrom; and it is further,
Ordered that the appeal from the order dated July 1, 2011, is dismissed.
On September 4, 1991, the defendant, a native of Taiwan, pleaded guilty to twocounts of criminal possession of a weapon in the third degree. On September 25, 1991,he was sentenced to a definite term of incarceration of one year on each count, to beserved concurrently. In April 2010, the defendant, relying on Padilla v Kentucky(559 US 356 [2010]), moved, inter alia, pursuant to CPL 440.10 to vacate the judgmentof conviction on the ground that he was deprived of the constitutional right to theeffective assistance of counsel by his attorney's alleged failure to advise him of theimmigration consequences of his plea.
In an order dated December 15, 2010, made after a hearing, the Supreme Courtdenied [*2]the aforementioned branch of the defendant'smotion, concluding that Padilla did not apply retroactively, and, additionally, thatthe defendant failed to show that his defense was prejudiced by defense counsel'spurported failure to advise him of the immigration consequences of his plea. However,"in the interest of justice," the Supreme Court, sua sponte, in effect, vacated theconviction and adjudicated the defendant a youthful offender (see CPL 720.20).
In an order dated July 1, 2011, the Supreme Court, in effect, upon reargument,adhered to the original determination in the order dated December 15, 2010, sua sponte,in effect, vacating the conviction and adjudicating the defendant a youthful offender.
As the judgment of conviction became final prior to March 31, 2010, the datePadilla was decided, the Padilla rule should not be applied retroactivelyin this case (see People vAndrews, 108 AD3d 727, 728-729 [2013]; see also Chaidez v UnitedStates, 568 US —, 133 S Ct 1103 [2013]). Therefore, the Supreme Courtproperly denied that branch of the defendant's motion which was pursuant to CPL 440.10to vacate the judgment based on Padilla.
The Criminal Procedure Law expressly enumerates and describes the ordersappealable by the People to the Appellate Division in a criminal case (see CPL450.20; People v Fetcho, 91 NY2d 765, 769 [1998]), and "[n]o appeal lies froma determination made in a criminal proceeding unless specifically provided for bystatute" (People v Dunn, 4NY3d 495, 497 [2005] [internal quotation marks omitted]; see People v Pagan, 19 NY3d368, 370 [2012]). As no statute authorizes an appeal by the People to the AppellateDivision from an order, in effect, vacating a conviction and adjudicating a defendant ayouthful offender (see CPL 450.20), the People's appeal must be dismissed (see People v Joseph R., 17NY3d 767, 768 [2011]; People v Dunn, 4 NY3d at 497; People vLaing, 79 NY2d 166, 170 [1992]). The proper vehicle for challenging the SupremeCourt's determination is a CPLR article 78 proceeding in the nature of prohibition(see Matter of Pirro v Angiolillo, 89 NY2d 351, 355-356 [1996]; see alsoPeople v Pagan, 19 NY3d at 371). Mastro, J.P., Leventhal, Lott and Roman, JJ.,concur.