| People v Hoyer |
| 2014 NY Slip Op 05286 [119 AD3d 1457] |
| July 11, 2014 |
| Appellate Division, Fourth Department |
[*1]
| 1 The People of the State of New York, Respondent, vRonald E. Hoyer, Appellant. |
Law Office of Mark A. Young, Rochester (Bridget L. Field of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Nicole M. Fantigrossi of counsel), forrespondent.
Appeal, by permission of a Justice of the Appellate Division of the Supreme Court inthe Fourth Judicial Department, from an order of the Supreme Court, Monroe County(Francis A. Affronti, J.), entered April 12, 2012. The order denied the motion ofdefendant to vacate the judgment of conviction pursuant to CPL 440.10.
It is hereby ordered that the order so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from an order denying his motion pursuant to CPLarticle 440 seeking to vacate the judgment convicting him of attempted criminal sale of acontrolled substance in the third degree (Penal Law §§ 110.00, 220.39[1]). Supreme Court properly denied the motion. Defendant, a Canadian citizen whoemigrated to the United States in 1960 and is a permanent legal resident, was convictedof that crime in 1991 and completed his sentence of probation in 1994. He was arrestedby Homeland Security officers in 2011 on the ground that the 1991 conviction is anaggravated felony pursuant to 8 USC § 1101 (a) (43) (B) and thus, as an"alien who is convicted of an aggravated felony at any time after admission, [he] isdeportable" (8 USC § 1227 [a] [2] [A] [iii]). In support of his motionpursuant to CPL 440.10 (1) (h), defendant contended that he was denied effectiveassistance of counsel based upon defense counsel's failure to advise him that theconviction could result in deportation. Although the Supreme Court concluded inPadilla v Kentucky (559 US 1473 [2010]) that the failure of defense counsel toadvise a noncitizen defendant about the potential for deportation constituted ineffectiveassistance of counsel, it clarified in Chaidez v United States (568 US &mdash,&mdash, 133 S Ct 1103, 1105 [2013]) that Padilla "does not have retroactiveeffect." Inasmuch as the Court of Appeals has concluded that there is no basis to departfrom the Supreme Court's holding in Chaidez (see People v Baret, 23 NY3d 777, 792-798 [2014]), wereject defendant's contention.
With respect to defendant's remaining contention that he also was denied effectiveassistance of counsel based on defense counsel's failure to seek dismissal of theindictment pursuant to CPL 30.30, we conclude that the court properly determined thatdefendant received meaningful representation inasmuch as he received "an advantageousplea and nothing in the record casts doubt on the apparent effectiveness of counsel"(People v Ford, 86 NY2d 397, 404 [1995]). We note that, in People v Peque (22 NY3d168, 195-196 [2013]), the Court of Appeals overruled "only [*2]so much of Ford as suggests that a trial court'sfailure to tell a defendant about potential deportation is irrelevant to the validity of thedefendant's guilty plea," and did not otherwise disturb that part of Ford addressedto a defendant's constitutional right to effective assistance of counsel in the context of aguilty plea (see People vVargas, 112 AD3d 979, 980 [2013]). Present—Scudder, P.J., Smith,Fahey, Sconiers and Valentino, JJ.