| People v Alvarez |
| 2013 NY Slip Op 07743 [111 AD3d 843] |
| November 20, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Cesar Alvarez, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Johnnette Traill, and Suzanne H. Sullivan of counsel), for respondent.
Appeal by the defendant, by permission, from an order of the Supreme Court,Queens County (Camacho, J.), dated July 21, 2011, which denied, without a hearing, hismotion pursuant to CPL 440.10 to vacate a judgment of the same court (Berkowitz, J.),rendered January 11, 1991, convicting him of sexual abuse in the first degree, upon hisplea of guilty, and imposing sentence.
Ordered that the order is affirmed.
On November 30, 1990, the defendant, a native of Colombia and a lawful permanentresident of the United States, pleaded guilty to sexual abuse in the first degree and, onJanuary 11, 1991, was sentenced to a determinate term of imprisonment of six monthsand five years of probation. More than 20 years after the defendant was sentenced, inMarch 2011, the United States Department of Homeland Security initiated removalproceedings against the defendant on the ground that the conviction was a deportableoffense.
The defendant moved to vacate the conviction pursuant to CPL 440.10, on theground that he was deprived of the effective assistance of counsel, alleging that hisattorney failed to advise him of the immigration consequences of his plea, as required byPadilla v Kentucky (559 US 356 [2010]). The Supreme Court denied thedefendant's motion, without a hearing, on the ground that, even assuming that Padillaapplied retroactively, the defendant had neither alleged facts nor providedevidentiary support to demonstrate that his attorney's performance was deficient. Bydecision and order dated August 7, 2012, a Justice of this Court granted leave to appealfrom 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 set forth in Padilla, that the SixthAmendment requires an attorney for a criminal defendant to provide advice about therisk of deportation arising out of a plea of guilty, does not apply retroactively to personswhose convictions became final before the date Padilla was decided. In People v Andrews (108 AD3d727 [2013]), this Court declined to give broader retroactive effect to the Padillarule under the New York Constitution and held that, under New York law, thePadilla rule should not be retroactively applied to cases where the convictionsbecame final prior [*2]to March 31, 2010, the datePadilla was decided.
Here, the defendant's conviction became final well before the date Padillawas decided and, thus, the rule in Padilla does not apply to this case. Withoutthe benefit of the Padilla rule, the alleged failure of the defendant's attorney toadvise him of the possibility that he might be deported as a result of his plea does notconstitute deficient performance under either the federal or state constitution, since, priorto Padilla, "the failure of counsel to warn [a] defendant of the possibility ofdeportation [did not] constitute ineffective assistance of counsel" (People v Ford,86 NY2d 397, 404 [1995]; seePeople v Soodoo, 109 AD3d 1014, 1015 [2013]).
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. Eng, P.J., Dickerson, Chambers and Hall, JJ., concur.