For the People: ADA Daniel P. Hughes, Office of the Special Narcotics Prosecutor.
For Defendant: Labe M. Richman, Esq.
Richard M. Weinberg, J.
Defendant was originally charged with two counts of the B felony of Criminal Sale of a Controlled Substance in the Third Degree (PL § 220.39 ). On October 28, 1997, defendant pled guilty under a Superior Court Information to the lesser charge of Attempted Criminal Sale of a Controlled Substance in the Third Degree (PL §110/220.16), a C felony. The agreed upon sentence of five years of probation was imposed on January 20, 1998.
Because defendant faces removal proceedings as a result of this conviction, he has brought a motion pursuant to CPL §440.10. He alleges that he received ineffective assistance of counsel under the standards articulated in Padilla v Kentucky, 130 S.Ct. 1473 (2010), because his attorney failed to advise him of the immigration consequences of his plea and such failure has prejudiced him in that he now faces deportation.
To prevail on an ineffective assistance of counsel claim, defendant must show that counsel's performance was deficient, that is, it was unreasonable under the prevailing professional norms at the time of representation. Defendant must also show that this deficient performance prejudiced the defendant. Strickland v Washington, 466 U.S. 668 (1984); People v Mc Donald, 1 N.Y.3d 109 (2003). Failure to establish either deficient performance or prejudice is fatal to defendant's motion.
As noted above, a defense counsel's performance is to be evaluated under the prevailing norms at the time of representation. Padilla, decided in 2010, makes clear that professional norms now require that a defense attorney advise his client on the immigration consequences of a plea. Padilla, because it announced a "new rule" of law, does not have retroactive effect under the principles set out in Teague v Lane (489 U.S. 288 ) and People v Eastman (85 N.Y.2d 265 . Consequently, Padilla does not apply to collateral challenges to convictions which became final prior to the Padilla decision. Chaidez v United States, __S.Ct._, 2013 WL 610201 (2013); People v Verdejo, ___A.D.3d__, 967 N.Y.S.2d 729 (1st Dept., 2013).
Defense counsel, nevertheless, urges this Court to apply Padilla retroactively, citing Danforth v Minnesota, 552 U.S. 264 (2008). Under Danforth, State Courts, when reviewing their own state criminal convictions, have the authority to provide broader remedies for federal constitutional violations than those mandated by Teague. Defense counsel argues that this Court should not be limited by a Teague analysis and should provide a retroactive State remedy for Padilla claims. Defense counsel urges this Court to do so despite the fact that the holding by the Appellate Division, First Department in Verdejo was premised upon a Teague/Eastman analysis. Defense counsel argues that this Court is somehow not bound by the Verdejo decision because the First Department "failed to even address its freedom to ignore Teague under Danforth." While Danforth may not have been explicitly addressed by the Verdejo Court, that absence does not render the Verdejo decision non-binding on this Court. Unless and until the New York Court of Appeals finds otherwise, this Court will adhere to the rulings provided by the United States Supreme Court and the Appellate Division, First Department.
Defense counsel additionally argues that, because the consequences of defendant's plea are of such severe magnitude, the Court should find that this case somehow entails a constitutional violation which falls outside the scope of a "pure Padilla situation". Consequently, the Court would then not be encumbered by the non-retroactivity of Padilla. Contrary to defendant's assertion, there is nothing about this case which would put it outside the ambit of Padilla. This case presents a "pure Padilla situation" and this Court is bound by the clear holdings in both Chaidez and Verdejo that Padilla does not have retroactive effect.
As noted above, prior to Padilla, the immigration consequences of a plea were considered collateral and, absent affirmative mis-advice, the failure to advise a defendant of those immigration consequences neither rendered counsel's performance deficient nor made the plea involuntary. Defendant's plea occurred in 1997. Counsel's performance at the time of the plea comported with the then prevailing professional norms. See People v Ford, 86 N.Y.2d 397 (1995); People v McDonald, 1 N.Y.2d 109 (2003)
Since defendant has failed to establish that counsel's performance was deficient, the Court need not reach the issue of prejudice and need not hold a Picca hearing. See People v Picca, 97 A.D.3d 170 (2nd Dept., 2012).
Defendant's motion to vacate judgment pursuant to CPL 440.10 ...