THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. CORNELIUS JOHNSON DEFENDANT APPELLANT (2014)

MEMORANDUM AND ORDER

Appeal, by permission of a Justice of the Appellate Division of the Supreme Court in the Fourth Judicial Department, from an order of the Erie County Court (Michael F. Pietruszka, J.), entered September 20, 2010.   The order denied the motion of defendant pursuant to CPL 440.10.

It is hereby ORDERED that the order so appealed from is unanimously affirmed.

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) 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, _ NY3d _, _ [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 AD3d 1602, 1604, lv denied 22 NY3d 958).   We have considered defendant's remaining contention and conclude that it is without merit.

Frances E. Cafarell

Clerk of the Court