THE PEOPLE OF THE STATE OF NEW YORK v. EUGENIA PEDRAZA (2026)

Jenay Nurse Guilford, Center for Appellate Litigation, New York (Gabriella Raya Agranat–Getz of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Brian Witthuhn of counsel), for respondent.

Order, Supreme Court, Bronx County (Llinét M. Rosado, J.), entered on or about February 7, 2022, which insofar as appealed from, denied defendant's CPL 440.10 motion to vacate a judgment of conviction rendered June 13, 2002, unanimously affirmed.

The court providently exercised its discretion in denying, without a hearing, defendant's motion to vacate the judgment based on her claim of ineffective assistance of counsel by her trial counsel's failure to negotiate an immigration-favorable plea, as that claim was speculative (cf People v. George, 183 AD3d 436, 437 [1st Dept 2020] ).  Moreover, the evidence submitted on the motion failed to establish any reasonable probability that the People would have made such an offer (see Lafler v. Cooper, 566 U.S. 156, 163–164 [2012];  People v. Olivero, 130 AD3d 479, 480 [1st Dept 2015], lv denied 26 NY3d 1042 [2015] ).

To the extent defendant's claim is based on defense counsel's failure to advise her of the adverse immigration consequences of her plea, the court correctly concluded that is not a cognizable basis for vacatur or a hearing.  For a defendant whose conviction became final before the United States Supreme Court's decision in Padilla v. Kentucky (559 U.S. 356, 373–374 [2010] ), such a defendant “has no basis under either the United States or New York Constitutions for claiming that the alleged lack of immigration advice constituted ineffective assistance of counsel” (People v. Llibre, 125 AD3d 422, 423 [1st Dept 2013], lv denied 26 NY3d 969 [2015];  see Chaidez v. United States, 568 U.S. 343 [2013] [Padilla does not have retroactive application] ).  Defendant was convicted on June 13, 2002.