| People v Llibre |
| 2015 NY Slip Op 00817 [125 AD3d 422] |
| February 3, 2015 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Marcos Llibre, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Robin Nichinsky ofcounsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Hope Korenstein of counsel), forrespondent.
Order, Supreme Court, New York County (Bonnie G. Wittner, J.), entered on orabout June 27, 2013, which denied defendant's CPL 440.10 motion to vacate a 2007judgment of conviction, unanimously affirmed.
Defendant's ineffectiveness of counsel claims are primarily based on his attorney'salleged failure to advise him about the risk of deportation arising from his guilty plea(see Padilla v Kentucky, 559 US 356 [2010]). However, Padilla has noretroactive application to this appeal (see Chaidez v United States, 568 US&mdash, 133 S Ct 1103 [2013]; People v Baret, 23 NY3d 777 [2014]). Since thePadilla rule does not apply here, defendant has no basis under either the UnitedStates or New York Constitutions for claiming that the alleged lack of immigrationadvice constituted ineffective assistance of counsel (see People v Chacko, 119 AD3d 955 [2d Dept 2014], lvdenied 24 NY3d 1001 [2014]).
In addition to his Padilla claim, defendant argues that his counselaffirmatively misadvised him about the immigration consequences of his guilty plea (see People v McDonald, 1NY3d 109, 111 [2003]). However, defendant's factual allegations failed to supportsuch a claim (see CPL 440.30 [4]). In his affidavit, defendant only claimed hisattorney told him that, after taking the plea, he "would just get probation and the casewould be over." This does not constitute erroneous advice on the subject of deportation(see People vMelo-Cordero, 123 AD3d 595 [1st Dept 2014]; see also People v Simpson, 120AD3d 412 [1st Dept 2014]).
Defendant's claim relating to the court's inadequate or erroneous advice concerningthe immigration consequences of the plea (see People v Peque, 22 NY3d 168 [2013], cert denied574 US &mdash, 135 S Ct 90 [2014]) "[would be] clear from the face of the recordand therefore not properly raised in a CPL article 440 motion" (People v Louree, 8 NY3d541, 546 [2007]; see also People v Simpson, 120 AD3d at 412). Defendanthas not established any cognizable justification for his failure to appeal (see CPL440.10 [2] [c]; People vStewart, 16 NY3d 839, 841 [2011]; People v Ceni, 123 AD3d 506 [1st Dept 2014]), andnothing in People v Grubstein (24 NY3d 500 [2014]), which involves a [*2]complete deprivationof counsel, is to the contrary. Moreover, defendant's argument that his failure to appealwas the product of ineffective assistance of counsel has been rejected by this Court ondefendant's coram nobis motion (2014 NY Slip Op 73663[U] [1st Dept 2014]). Inaddition, while the remedy for a Peque error may involve a remand forfact-finding proceedings (22 NY3d at 200-201), we reject defendant's argument that thiscircumstance permits a record-based Peque claim to be raised on a CPL 440.10motion.
In any event, even if the statute permitted a record-based Peque claim to beraised by way of CPL article 440, defendant's claim would still be unavailing. AlthoughPeque is retroactive to cases pending on direct appeal (People v Brazil, 123 AD3d466 [1st Dept 2014]), there is no basis under the principles set forth in People vPepper (53 NY2d 213 [1981], cert denied 454 US 967 [1981]) to extendretroactivity to convictions that have become final. Concur—Friedman, J.P.,Andrias, Saxe, Richter and Gische, JJ.