Opinion
2011-2908 K CR
02-17-2015
The People of the State of New York, Respondent, v. Jean Clerger, Appellant.
PRESENT: : , ALIOTTA and SOLOMON, JJ.
Appeal, by permission, from an order of the Criminal Court of the City of New York, Kings County (John H. Wilson, J.), dated August 31, 2011. The order denied defendant's motion, pursuant to CPL 440.10, to vacate a judgment convicting him, upon his plea of guilty, of criminal possession of marihuana in the fifth degree.
ORDERED that the order is affirmed.
On November 16, 2008, defendant pleaded guilty to criminal possession of marihuana in the fifth degree (Penal Law § 221.10 [1]) in satisfaction of an accusatory instrument. Sentence was imposed on that same date. In 2011, defendant moved, pursuant to CPL 440.10, to vacate the judgment of conviction on the ground that he had not been advised of the immigration consequences when he had pleaded guilty. By order dated August 31, 2011, the motion was denied. Defendant's application for leave to appeal was granted by decision and order of this court dated May 23, 2012 (2012 NY Slip Op 74976[U]).
Defendant may not avail himself of the rule of Padilla v Kentucky (559 US 356 [2010]), which requires defense attorneys to inform their noncitizen clients of the deportation risks of guilty pleas, because that decision is not retroactively applied to convictions that became final before Padilla was decided on March 31, 2010 (see Chaidez v United States, 568 US , 133 S Ct 1103 [2013]; People v Baret, 23 NY3d 777 [2014]; People v Chacko, 119 AD3d 955 [2014]). Defendant's conviction became final, at the latest, on December 16, 2009, "the last date on which he would have been permitted to seek leave to file a late notice of appeal" (People v Andrews, 108 AD3d 727, 728 [2013], affd 23 NY3d 605 [2014]; see CPL 460.10 [1] [a]). As there was no ineffective representation based on any possible immigration consequences of his guilty plea in light of the law applicable at the time of the representation (see Strickland v Washington, 466 US 688, 690 [1984]), defendant's CPL 440.10 motion to vacate the judgment of conviction was properly denied (see People v Vargas, 112 AD3d 979, 980 [2013]).
Accordingly, the order is affirmed.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: February 17, 2015