Opinion
2014-07-30
The PEOPLE, etc., respondent, v. Matthew CHACKO, appellant.
Steven A. Feldman, Uniondale, N.Y., for appellant. Janet DiFiore, District Attorney, White Plains, N.Y. (John J. Carmody and Steven A. Bender of counsel), for respondent.
Steven A. Feldman, Uniondale, N.Y., for appellant.Janet DiFiore, District Attorney, White Plains, N.Y. (John J. Carmody and Steven A. Bender of counsel), for respondent.
Appeal by the defendant, by permission, from an order of the County Court, Westchester County (Zambelli, J.), entered February 2, 2012, which denied, without a hearing, his motion pursuant to CPL 440.10 to vacate a judgment of the same court (Smith, J.), rendered December 12, 2000, convicting him of assault in the second degree, upon his plea of guilty, and imposing sentence, or alternatively, pursuant to CPL 440.20 to set aside the sentence imposed.
ORDERED that the order is affirmed.
On March 31, 2010, the United States Supreme Court held in Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 that the Sixth Amendment requires defense attorneys to inform noncitizen clients of the deportation risks of guilty pleas. Thereafter, in Chaidez v. United States, ––– U.S. ––––, 133 S.Ct. 1103, 185 L.Ed.2d 149, the United States Supreme Court held that 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, 128 S.Ct. 1029, 169 L.Ed.2d 859, that, as a matter of New York law, broader retroactive effect should be given to the Padilla rule than is required under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334, the Court of Appeals has declined to do so ( see People v. Baret, –––N.Y.3d ––––, ––– N.Y.S.2d ––––, ––– N.E.3d –––– 2014 N.Y. Slip Op. 04872, 2014 WL 2921420 [2014];see also People v. Vargas, 117 A.D.3d 885, 886, 986 N.Y.S.2d 492;People v. Soodoo, 109 A.D.3d 1014, 1015, 972 N.Y.S.2d 290;People v. Verdejo, 109 A.D.3d 138, 967 N.Y.S.2d 729;People v. Andrews, 108 A.D.3d 727, 970 N.Y.S.2d 226).
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 the United States or New York Constitutions. At the time that the defendant entered his plea of guilty in 2000, defense counsel's performance was governed by the rule that “the failure of defense counsel to warn [a] defendant of possible deportation” did not constitute ineffective assistance of counsel ( People v. Ford, 86 N.Y.2d 397, 398, 633 N.Y.S.2d 270, 657 N.E.2d 265;see People v. Vargas, 112 A.D.3d 979, 978 N.Y.S.2d 279;People v. Soodoo, 109 A.D.3d at 1015, 972 N.Y.S.2d 290;cf. People v. Peque, 22 N.Y.3d 168, 196–197, 980 N.Y.S.2d 280, 3 N.E.3d 617). Therefore, the County Court properly denied, without a hearing, that branch of the defendant's motion which was pursuant to CPL 440.10 vacate the judgment of conviction.
The County Court also properly denied, without a hearing, that branch of the defendant's motion which was pursuant to CPL 440.20 to set aside the sentence imposed. CPL 440.20 authorizes a sentence to be set aside on the grounds that it is “unauthorized, illegally imposed or otherwise invalid as a matter of law” (CPL 440.20[1] ). The defendant has failed to show that the sentence imposed should be vacated on those grounds, and his claim that the sentence is excessive may not be raised on a CPL 440.20 motion ( see People v. Jean–Louis, 74 A.D.3d 1481, 1483, 902 N.Y.S.2d 705;People v. Boyce, 12 A.D.3d 728, 730, 783 N.Y.S.2d 722;People v. Cunningham, 305 A.D.2d 516, 517, 758 N.Y.S.2d 832). Contrary to the defendant's contention, the sentence imposed was not unconstitutional as applied to him or violative of the prohibition against cruel and unusual punishments ( see U.S. Const., 8th Amend.; N.Y. Const., art. I, § 5; People v. Thompson, 83 N.Y.2d 477, 611 N.Y.S.2d 470, 633 N.E.2d 1074;People v. Broadie, 37 N.Y.2d 100, 371 N.Y.S.2d 471, 332 N.E.2d 338). DICKERSON, J.P., LEVENTHAL, AUSTIN and HINDS–RADIX, JJ., concur.