| People v Pena |
| 2015 NY Slip Op 07685 [132 AD3d 910] |
| October 21, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Victor A. Pena, Appellant. |
Wilens & Baker, New York, N.Y. (Jonathan I. Edelstein and Daniel S. Kratkaof counsel), for appellant.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Karla Lato of counsel), forrespondent.
Appeal by the defendant, by permission, from an order of the County Court, SuffolkCounty (Braslow, J.), dated April 16, 2014, which, without a hearing, denied his motionpursuant to CPL 440.10 to vacate a judgment of the same court (Vaughn, J.), renderedFebruary 6, 1998, convicting him of conspiracy in the fourth degree, upon his plea ofguilty, on the ground that he was not advised by the County Court of the immigrationconsequences of his plea of guilty.
Ordered that the order is affirmed.
In 1998, the defendant was convicted, upon his plea of guilty, of conspiracy in thefourth degree. In 2014, the defendant moved pursuant to CPL 440.10 to vacate thejudgment of conviction on the ground that the County Court had failed to advise him ofthe immigration consequences of his plea, pursuant to the Court of Appeals' holding inPeople v Peque (22 NY3d168 [2013]).
The County Court properly denied the defendant's motion. The defendant'sconviction became final prior to People v Peque (22 NY3d 168 [2013]), in which the Courtof Appeals held that courts were required to advise defendants of the deportationconsequences of a plea of guilty. The defendant contends that Peque should beapplied retroactively. This contention is without merit.
Previously, in Padilla v Kentucky (559 US 356 [2010]), the United StatesSupreme Court held that defense counsel were under a duty to advise noncitizendefendants of the deportation risks of their pleas of guilty. It is now settled that thePadilla decision does not apply retroactively in state court postconvictionproceedings (see People vBaret, 23 NY3d 777, 781 [2014]; People v Andrews, 108 AD3d 727 [2013]). For the samereasons, we decline to give retroactive application to Peque, which, likePadilla, concerns the immigration consequences of a plea of guilty, and "ratherthan going to the heart of a reliable determination of guilt or innocence, insteadconcentrates on the defendant's appreciation of the immigration consequences that mayflow from an otherwise proper plea allocution" (People v Andrews, 108 AD3d at728; see People v Baret, 23 NY3d at 779-800). Mastro, J.P., Leventhal, Duffyand Barros, JJ., concur.