Lynn W. L. Fahey, New York, N.Y. (Lisa Napoli of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano and Sharon Y. Brodt of counsel), for respondent.
DANIEL D. ANGIOLILLO, J.P. CHERYL E. CHAMBERS SHERI S. ROMAN SYLVIA O. HINDS-RADIX, JJ.
DECISION AND ORDER
Appeal by the defendant, by permission, from an order of the Supreme Court, Queens County (Erlbaum, J.), dated February 22, 2011, which denied, without a hearing, his motion pursuant to CPL 440.10 to vacate a judgment of the same court (Joy, J.), rendered January 25, 1993, convicting him of grand larceny in the fourth degree, upon his plea of guilty, and imposing sentence.
ORDERED that the order is affirmed.
On January 4, 1993, the defendant, a Guyana native and lawful permanent resident of the United States, pleaded guilty to grand larceny in the fourth degree and, on January 25, 1993, he was sentenced to an indeterminate term of imprisonment of one to three years. Thereafter, Immigration and Customs Enforcement of the United States Department of Homeland Security initiated removal proceedings against the defendant on the ground that the conviction was a deportable offense. On October 14, 2010, the defendant moved to vacate the conviction on the ground that he was denied the right to effective assistance of counsel, alleging both that his attorney failed to advise him of the immigration consequences of his plea as required by Padilla v Kentucky (559 U.S. 356), and that the attorney incorrectly advised him that there would be no immigration consequences. The Supreme Court denied the defendant's motion, without a hearing, on the ground that, even assuming that Padilla applied retroactively, the defendant's allegations were insufficient to show that his attorney failed to advise or misadvised him as to the immigration consequences of his plea, or that his defense was prejudiced thereby. By decision and order dated February 21, 2012, a Justice of this Court granted leave to appeal from the Supreme Court's order.
In Chaidez v United States (_____ U.S. _____, 133 S.Ct. 1103), the United States Supreme Court held that the rule stated in Padilla does not apply retroactively to persons whose convictions became final before Padilla was decided. Although the defendant argues, pursuant to Danforth v Minnesota (552 U.S. 264, 282), that this Court should give broader retroactive effect to the Padilla rule than required under Teague v Lane (489 U.S. 288), we have declined to do so (see People v Andrews, 108 A.D.3d 727; see also People v Verdejo, 109 A.D.3d 138).
Here, without the benefit of the Padilla rule, the alleged failure of the defendant's attorney to advise him of the possibility that he might be deported as a result of his plea does not constitute deficient performance under either the federal or state constitution, since "the failure of counsel to warn [a] defendant of the possibility of deportation [does not] constitute ineffective assistance of counsel" (People v Ford, 86 N.Y.2d 397, 404).
The defendant's contention that his attorney's alleged failure to advise him of the plea's removal risks fell short of the professional norms of the day is unavailing since, prior to Padilla, "a lawyer's breach of these norms was constitutionally irrelevant because deportation was a collateral consequence" of the plea (Chaidez v United States, 133 S.Ct. at 1113 n 15).
The defendant's additional contention that his attorney misadvised him about the consequences of his plea by assuring him that deportation was unlikely was unsupported by any affidavits or other evidence, was made only after he was taken into custody by the immigration authorities, and contradicted his assertion that his attorney failed to mention the possibility of deportation at all. Accordingly, the Supreme Court did not err in determining that the petitioner's allegations that his attorney's performance was deficient in this matter did not warrant a hearing (see CPL 440.30; People v Smiley, 67 A.D.3d 713; People v Chiu Mei Lan Kwok, 51 A.D.3d 814, 815; People v Kabre, 29 Misc.3d 307, 322-323; cf. People v Picca, 97 A.D.3d 170, 178-179; People v Williams, 72 A.D.3d 1347). Nor did the court err in denying the defendant's request for the appointment of counsel, since the defendant failed "in his papers [to] suggest[ ] a possible basis on the merits" (see People ex rel. Williams v La Vallee, 19 N.Y.2d 238, 240-241).
In any event, the defendant failed to sufficiently allege that the alleged deficiencies had the requisite impact on his defense under either the federal or state standards. His allegations failed to raise an issue of fact as to whether an incentive to remain in the United States would have made it rational to reject the plea offer in favor of risking a sentence of up to 12 additional years in prison by proceeding to trial (see Padilla v Kentucky, 559 U.S. at 372; People v Gooden, 34 Misc.3d 1210 [A], 2012 NY Slip Op 50029 [U], *6; cf. People v Picca, 97 A.D.3d at 184; People v McKenzie, 4 A.D.3d 437, 439-440). Likewise, the record here provides no basis to conclude that the alleged lack of advice or misadvice was "egregious and prejudicial error" such that it denied him meaningful representation (People v Benevento, 91 N.Y.2d 708, 713 [internal quotation marks omitted]; see People v Caban, 5 N.Y.3d 143, 152).
Accordingly, the Supreme Court did not err in denying the defendant's motion pursuant to CPL 440.10 to vacate his judgment of conviction on the ...