In Chaidez v. United States, ––– U.S. ––––, ––––, 133 S.Ct. 1103, 1105, 185 L.Ed.2d 149, the United States Supreme Court held that the rule announced in Padilla does not apply retroactively to persons whose convictions became final before Padilla was decided. This Court has declined to afford the Padilla rule a more expansive retroactive effect under the New York State Constitution ( see 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;see also People v. Vansertima, 113 A.D.3d 705, 978 N.Y.S.2d 327;People v. Vargas, 112 A.D.3d 979, 978 N.Y.S.2d 279;People v. Alvarez, 111 A.D.3d 843, 976 N.Y.S.2d 104). Here, the defendant's conviction became final long before Padilla was decided on March 31, 2010. Without the benefit of the Padilla rule, the alleged failure of the defendant's attorney to advise her of the possibility that she might be deported as a result of her plea did not constitute ineffective assistance of counsel under either the federal or state constitution at the time of the defendant's guilty plea in 1996 ( see People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265;People v. Vargas, 112 A.D.3d at 980, 978 N.Y.S.2d 279;People v. Alvarez 111 A.D.3d at 844, 976 N.Y.S.2d 104).
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 announced in Padilla does not apply retroactively to persons whose convictions became final before Padilla was decided. This Court has declined to afford the Padilla rule a more expansive retroactive effect under the New York State Constitution ( see 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;see also People v. Vansertima, 113 A.D.3d 705, 978 N.Y.S.2d 327;People v. Vargas, 112 A.D.3d 979, 978 N.Y.S.2d 279;People v. Alvarez, 111 A.D.3d 843, 976 N.Y.S.2d 104). Here, the defendant's conviction became final well before Padilla was decided on March 31, 2010. Without the benefit of the Padilla rule, the alleged failure of the defendant's attorney to advise him of the immigration consequences of his plea could not constitute ineffective assistance under either the federal or state constitution ( see People v. Vansertima, 113 A.D.3d 705, 978 N.Y.S.2d 327;People v. Vargas, 112 A.D.3d 979, 978 N.Y.S.2d 279;People v. Alvarez, 111 A.D.3d 843, 976 N.Y.S.2d 104;People v. Soodoo, 109 A.D.3d 1014, 1015, 972 N.Y.S.2d 290).
The defendant contends that his former counsel's omission constituted ineffective assistance of counsel under the rule set forth in Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284, and asks this Court to apply that rule retroactively to vacate his final judgment of conviction. However, the rule announced in Padilla has been held to apply only in those cases where the judgment of conviction was not yet final as of the date Padilla was decided ( see Chaidez v. United States, ––– U.S. ––––, 133 S.Ct. 1103, 185 L.Ed.2d 149), and this Court has expressly declined to afford the Padilla rule a more expansive retroactive effect under the New York State Constitution ( see 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]; see also People v. Vargas,112 A.D.3d 979, 978 N.Y.S.2d 279 [2d Dept. 2013]; People v. Alvarez, 111 A.D.3d 843, 976 N.Y.S.2d 104; People v. Tony C., 110 A.D.3d 1093, 974 N.Y.S.2d 503; People v. Soodoo, 109 A.D.3d 1014, 972 N.Y.S.2d 290). Here, the defendant was convicted in 1997 and no appeal was ever taken; hence, the judgment of conviction became final prior to March 31, 2010, when Padilla was decided.
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]).
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).
With respect to defendant's remaining contention that he also was denied effective assistance of counsel based on defense counsel's failure to seek dismissal of the indictment pursuant to CPL 30.30, we conclude that the court properly determined that defendant received meaningful representation inasmuch as he received “an advantageous plea and nothing in the record casts doubt on the apparent effectiveness of counsel” ( People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265). We note that, in People v. Peque, 22 N.Y.3d 168, 195–196, 980 N.Y.S.2d 280, the Court of Appeals overruled “only so much of Ford as suggests that a trial court's failure to tell a defendant about potential deportation is irrelevant to the validity of the defendant's guilty plea,” and did not otherwise disturb that part of Ford addressed to a defendant's constitutional right to effective assistance of counsel in the context of a guilty plea ( see People v. Vargas, 112 A.D.3d 979, 980, 978 N.Y.S.2d 279). It is hereby ORDERED that the order so appealed from is unanimously affirmed.
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 1990, defense counsel's performance was governed by the rule that “the failure of counsel to warn [a] defendant of the possibility of deportation” did not constitute ineffective assistance of counsel ( People v. Ford, 86 N.Y.2d 397, 404, 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).
Here, the defendant's conviction became final well before the date Padilla was decided and, thus, the rule in Padilla does not apply to this case. 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, prior to Padilla, “the failure of counsel to warn [a] defendant of the possibility of deportation [did not] constitute ineffective assistance of counsel” ( People v. Ford, 86 N.Y.2d 397, 404, 633 N.Y.S.2d 270, 657 N.E.2d 265;see People v. Vansertima, 113 A.D.3d 705, 978 N.Y.S.2d 327;People v. Vargas, 112 A.D.3d 979, 978 N.Y.S.2d 279;People v. Alvarez, 111 A.D.3d 843, 844, 976 N.Y.S.2d 104;People v. Soodoo, 109 A.D.3d 1014, 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 his judgment of conviction on the ground of ineffective assistance of counsel.
2052;see People v. McDonald, 1 N.Y.3d at 113, 769 N.Y.S.2d 781, 802 N.E.2d 131). “The second prong ‘focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process' ” ( People v. Picca, 97 A.D.3d at 177, 947 N.Y.S.2d 120, quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203;see People v. McDonald, 1 N.Y.3d at 114, 769 N.Y.S.2d 781, 802 N.E.2d 131). “With respect to the first prong of the Strickland standard, prior to the United States Supreme Court's decision in Padilla, it was the law of this State that defense counsel was not under a duty to advise defendants of the removal consequences of a plea of guilty because such consequences were deemed to be ‘collateral’ to the sentence” ( People v. Picca, 97 A.D.3d at 177, 947 N.Y.S.2d 120 [internal quotation marks omitted]; see People v. McDonald, 1 N.Y.3d at 114, 769 N.Y.S.2d 781, 802 N.E.2d 131;People v. Ford, 86 N.Y.2d 397, 403, 633 N.Y.S.2d 270, 657 N.E.2d 265;see also People v. Vargas, 112 A.D.3d 979, 978 N.Y.S.2d 279). “Thus, prior to Padilla, defendants could only assert valid ineffective assistance claims where their attorneys had provided them with affirmatively incorrect advice regarding removal consequences” ( People v. Picca, 97 A.D.3d at 177–178, 947 N.Y.S.2d 120;see People v. McDonald, 1 N.Y.3d at 114–115, 769 N.Y.S.2d 781, 802 N.E.2d 131).
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.