Opinion
2014-01-15
The PEOPLE, etc., respondent, v. Ron VANSERTIMA, appellant.
Steven Banks, New York, N.Y. (Harold V. Ferguson, Jr., of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Daniel Bresnahan, and Ayelet Sela of counsel), for respondent.
Steven Banks, New York, N.Y. (Harold V. Ferguson, Jr., of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Daniel Bresnahan, and Ayelet Sela of counsel), for respondent.
REINALDO E. RIVERA, J.P., RUTH C. BALKIN, L. PRISCILLA HALL, and SANDRA L. SGROI, JJ.
Appeal by the defendant, by permission, from an order of the Supreme Court, Queens County (Chin–Brandt, J.), dated September 7, 2011, which denied, without a hearing, his motion pursuant to CPL 440.10 to vacate a judgment of the same court rendered May 31, 2007, convicting him of attempted burglary in the second degree (two counts), upon his plea of guilty, and imposing sentence.
ORDERED that the order is affirmed.
The defendant moved pursuant to CPL 440.10 to vacate a judgment of conviction rendered May 31, 2007, upon his plea of guilty, on the ground that he was deprived of his right to the effective assistance of counsel. The defendant alleged that his attorney failed to advise him of the immigration consequences of his plea as required by Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284. The Supreme Court denied the defendant's motion, without a hearing, holding that even if counsel's representation was ineffective for failing to advise the defendant of the immigration consequences of his plea, the defendant failed to establish that he was prejudiced thereby. By decision and order on application dated January 31, 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, 185 L.Ed.2d 149, 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 that, pursuant to Danforth v. Minnesota, 552 U.S. 264, 282, 128 S.Ct. 1029, 169 L.Ed.2d 859, this Court should give broader retroactive effect to the Padilla rule than required under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334, this Court has declined to do so ( see People v. Soodoo, 109 A.D.3d 1014, 1015, 972 N.Y.S.2d 290; People v. Andrews, 108 A.D.3d 727, 970 N.Y.S.2d 226, lv. denied22 N.Y.3d 1038, 981 N.Y.S.2d 372, 4 N.E.3d 384 [Dec. 4, 2013] ).
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 ( see People v. Vargas, 112 A.D.3d 979, 978 N.Y.S.2d 279, 2013 N.Y. Slip Op. 08673 [2d Dept.2013]; People v. Soodoo, 109 A.D.3d at 1015, 972 N.Y.S.2d 290.)
Accordingly, the Supreme Court did not err in denying the defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction on the ground of ineffective assistance of counsel.