Opinion
2014-07-11
The PEOPLE of the State of New York, Respondent, v. Cornelius JOHNSON, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Alan Williams of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Alan Williams of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, and SCONIERS, JJ.
MEMORANDUM:
Defendant appeals from an order denying his motion pursuant to CPL article 440 seeking to vacate the judgment convicting him of criminal possession of marihuana in the fourth degree (Penal Law § 221.15). We previously affirmed the order denying defendant's similar motion pursuant to CPL 440.10( People v. Johnson, 41 A.D.3d 1284, 837 N.Y.S.2d 810,lv. denied9 N.Y.3d 877, 842 N.Y.S.2d 789, 874 N.E.2d 756). We rejected defendant's contention that he was deprived of effective assistance of counsel based on defense counsel's failure to advise him that deportation was an automatic consequence of a conviction ( id. at 1285, 837 N.Y.S.2d 810). After our decision was issued, the Supreme Court decided Padilla v. Kentucky, 559 U.S. 356, 374, 130 S.Ct. 1473, 176 L.Ed.2d 284 wherein it held that an attorney's failure to advise a defendant of the deportation consequences of a guilty plea constitutes ineffective assistance of counsel. Based on Padilla, defendant brought this current CPL 440.10 motion.
We reject defendant's contention that he was denied effective assistance of counsel. After Padilla, the Supreme Court held in Chaidez v. United States, 559 U.S. ––––, ––––, 133 S.Ct. 1103, 1105, 185 L.Ed.2d 149 that Padilla “does not have retroactive effect,” and the Court of Appeals has found no basis to depart from the Supreme Court's holding ( see People v. Baret, ––– N.Y.3d ––––, ––––, ––– N.Y.S.2d ––––, ––– N.E.3d –––– [June 30, 2014] ).
Defendant's further contention that his plea was not voluntary, knowing, and intelligent because neither defense counsel nor County Court (Rogowski, J.) advised him that he could be deported based upon his conviction is not properly before us because defendant failed to raise that contention in his CPL 440.10 motion ( see People v. Pennington, 107 A.D.3d 1602, 1604, 966 N.Y.S.2d 803,lv. denied22 N.Y.3d 958, 977 N.Y.S.2d 189, 999 N.E.2d 554). We have considered defendant's remaining contention and conclude that it is without merit.
It is hereby ORDERED that the order so appealed from is unanimously affirmed.