| People v Vargas |
| 2014 NY Slip Op 03546 [117 AD3d 885] |
| May 14, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Ramon J. Vargas, Appellant. |
Goldberger & Dubin, P.C., New York, N.Y. (Edgar L. Fankbonner of counsel),for appellant.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Thomas C. Costello ofcounsel), for respondent.
Appeal by the defendant, by permission, from an order of the County Court, SuffolkCounty (Weber, J.), dated May 18, 2012, which denied, without a hearing, his motionpursuant to CPL 440.10 to vacate a judgment of the same court rendered February 14,1991, convicting him of attempted criminal sale of a controlled substance in the thirddegree, upon his plea of guilty, and imposing sentence.
Ordered that the order is affirmed.
Pursuant to a negotiated disposition, on December 20, 1990, the defendant, a nativeof the Dominican Republic and, at that time, a lawful permanent resident of the UnitedStates, pleaded guilty to attempted criminal sale of a controlled substance in the thirddegree. On February 14, 1991, he was sentenced as promised. In 2010, the defendant wasconvicted of another felony, and sentenced to a term of imprisonment. Shortly after hisarrest for that felony, the Immigration and Customs Enforcement Unit of the UnitedStates Department of Homeland Security initiated removal proceedings against thedefendant on the ground that his 1991 conviction of criminal sale of a controlledsubstance in the third degree was a deportable offense. In those proceedings, thedefendant conceded removability based on the 1991 conviction, but sought discretionaryrelief from deportation. The United States Immigration Court denied the defendant'sapplication, and directed that the defendant be deported. The Board of ImmigrationAppeals affirmed the order.
Thereafter, the defendant moved to vacate his 1991 conviction on the ground that hewas deprived of the right to effective assistance of counsel, alleging that his attorneyfailed to advise him of the immigration consequences of his plea, as required byPadilla v Kentucky (559 US 356 [2010]). The County Court denied thedefendant's motion, without a hearing, holding that Padilla did not applyretroactively and, in any event, the defendant failed to establish that he was prejudiced byhis attorney's alleged failure to inform him of the immigration consequences of his plea.By decision and order dated September 11, 2012, a Justice of this Court granted thedefendant leave to appeal from the County Court's order.
[*2] In Chaidez v United States (568 US &mdash,133 S Ct 1103 [2013]), the United States Supreme Court held that the rule stated inPadilla does not apply retroactively to persons whose convictions became finalbefore Padilla was decided. Although the defendant argues, pursuant toDanforth v Minnesota (552 US 264, 282 [2008]), that this Court should givebroader retroactive effect to the Padilla rule than required under Teague vLane (489 US 288 [1989]), we have declined to do so (see People v Soodoo, 109AD3d 1014, 1015 [2013]; People v Andrews, 108 AD3d 727 [2013]).
Here, without the benefit of the Padilla rule, the alleged failure of thedefendant's attorney to advise him of the possibility that he might be deported as a resultof his plea does not constitute deficient performance under the United States or NewYork Constitutions. At the time that the defendant entered his plea of guilty in 1990,defense counsel's performance was governed by the rule that "the failure of counsel towarn [a] defendant of the possibility of deportation" did not constitute ineffectiveassistance of counsel (People v Ford, 86 NY2d 397, 404 [1995]; see People v Vargas, 112AD3d 979 [2013]; People v Soodoo, 109 AD3d at 1015; cf. People v Peque, 22 NY3d168, 196-197 [2013]).
In light of our determination, we need not reach the defendant's remainingcontention. Dickerson, J.P., Leventhal, Hall and Lott, JJ., concur.