| People v Vargas |
| 2013 NY Slip Op 08673 [112 AD3d 979] |
| December 26, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Junior Vargas, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (Robert J. Masters andEdward D. Saslaw of counsel), for respondent.
Appeal by the defendant, by permission, from an order of the Supreme Court,Queens County (Chin-Brandt, J.), dated January 12, 2012, which denied, without ahearing, his motion pursuant to CPL 440.10 to vacate a judgment of the same court,rendered May 30, 2001, convicting him of attempted robbery in the second degree, uponhis plea of guilty, and imposing sentence.
Ordered that the order is affirmed.
Pursuant to a negotiated disposition, on May 8, 2001, the defendant, a native of theDominican Republic and lawful permanent resident of the United States, pleaded guiltyto attempted robbery in the second degree. On May 30, 2001, he was sentenced aspromised. Thereafter, the Immigration and Customs Enforcement Unit of the UnitedStates Department of Homeland Security initiated removal proceedings against thedefendant on the ground that the conviction was a deportable offense. After thedefendant was released to the custody of immigration authorities, he moved to vacate hisconviction on the ground that he was denied the right to effective assistance of counsel,alleging that his attorney failed to advise him of the immigration consequences of hisplea, as required by Padilla v Kentucky (559 US 356 [2010]). The SupremeCourt denied the defendant's motion, without a hearing, holding that, either Padilladid not apply retroactively, or even assuming that it did apply retroactively, thedefendant's allegations were insufficient to establish his claim that he was prejudiced byhis attorney's alleged failure to inform him of the immigration consequences of his plea.By decision and order dated June 15, 2012, a Justice of this Court granted the defendantleave 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 Soodoo, 109 AD3d 1014, 1015 [2013]; People v Andrews, 108 AD3d727 [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 the federal or state constitution. At the time of the defendant's guilty plea in 2001,defense counsel's performance was governed by the rule that "the failure of counsel towarn [a] defendant of the possibility of deportation" does not constitute ineffectiveassistance of counsel (People v Ford, 86 NY2d 397, 404 [1995]; see People vSoodoo, 109 AD3d at 1015). The Court of Appeals recently overruled "only somuch of Ford as suggests that a trial court's failure to tell a defendant aboutpotential deportation is irrelevant to the validity of the defendant's guilty plea"(People v Peque, 22 NY3d 168, —, 2013 NY Slip Op 07651, *18 [2013]). In the three casesconsolidated for decision in Peque, the defendants raised, on direct appeal fromtheir judgments of conviction, the issue of whether constitutional due process obligatedthe trial court to advise them of the deportation consequences of their guilty pleas. Theinstant appeal, however, is taken from an order denying a post-judgment motion in whichthe defendant contended only that his federal and state constitutional rights to theeffective assistance of counsel were violated.
In light of our determination, we need not reach the defendant's remainingcontention. Rivera, J.P., Angiolillo, Hall and Cohen, JJ., concur.