Calendar Date: May 22, 2013
Meir Moza, Mineola (Edward D. Dowling IV, Port Jefferson of counsel), for appellant.
Nicole M. Duve, District Attorney, Canton (Jonathan L. Becker of counsel), for respondent.
Before: Peters, P.J., Rose, Stein and Garry, JJ.
MEMORANDUM AND ORDER
Appeal, by permission, from an order of the County Court of St. Lawrence County (Richards, J.), entered March 22, 2011, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction.
Defendant is a citizen of Jamaica, West Indies, who has resided in this country since he was nine years old. In 2009, defendant pleaded guilty to criminal possession of a controlled substance in the fifth degree in full satisfaction of a seven-count indictment pending against him. In accordance with the plea agreement, defendant was sentenced to five years of probation. After federal authorities commenced deportation proceedings against him, defendant moved pursuant to CPL 440.10 to vacate the judgment of conviction. County Court denied the motion without a hearing and defendant now appeals by permission.
Relying upon the rule set forth in Padilla v Kentucky (559 U.S. 356, ___, 130 S.Ct. 1473, 1483 ), defendant argues that he was denied his right to the effective assistance of counsel under the Sixth Amendment (see U.S. Const 6th Amend) due to counsel's failure to advise him of the deportation consequences of his plea (see People v Carty, 96 A.D.3d 1093, 1093-1094 ). Notwithstanding our prior holding that this rule applies retroactively (see People v Rajpaul, 100 A.D.3d 1183 ; People v Baret, 99 A.D.3d 408, 409 ), the United States Supreme Court has declared that Padilla is a "new rule, " which is not retroactive (Chaidez v United States, ___ U.S. ___, 133 S.Ct. 1103 ). Here, inasmuch as defendant's conviction was final prior to Padilla, the rule set forth therein is inapplicable. Therefore, defendant's motion to vacate the judgment of conviction was properly denied.
Peters, P.J., Rose and Garry, JJ., ...