PEOPLE v. ARISTY

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The PEOPLE, etc., respondent, v. Jose ARISTY, appellant.

Decided: January 29, 2014

WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, JOHN M. LEVENTHAL, and PLUMMER E. LOTT, JJ. Richard R. Gan, Roslyn Heights, N.Y., for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Sharon Y. Brodt, and Ushir Pandit of counsel), for respondent.

Appeal by the defendant, by permission, from an order of the Supreme Court, Queens County (Modica, J.), dated June 7, 2011, which denied, without a hearing, his motion pursuant to CPL 440.10 to vacate a judgment of the same court (Schulman, J.), rendered May 27, 1997, convicting him of attempted criminal sale of a controlled substance in the third degree, upon his plea of guilty, and imposing sentence.

ORDERED that the order is affirmed.

On May 27, 1997, the defendant, a native of the Dominican Republic, pleaded guilty to the crime of attempted criminal sale of a controlled substance in the third degree. On the same date, he was sentenced to a five-year period of probation. In support of his present motion pursuant to CPL 440.10 to vacate the judgment of conviction, the defendant averred that his former attorney never advised him at any time prior to the plea that a conviction would subject him to deportation from the United States. The defendant also averred that if he had known that his plea of guilty would jeopardize his immigration status, he would have exercised his right to a jury trial.

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), 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), 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 AD3d 727, lv granted ––– NY3d –––– [Nov. 6, 2013]; see also People v. Vargas, 112 AD3d 979, 2013 N.Y. Slip Op 08673 [2d Dept 2013]; People v. Alvarez, 111 AD3d 843; People v. Tony C., 110 AD3d 1093; People v. Soodoo, 109 AD3d 1014).

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. Accordingly, the defendant cannot avail himself of the Padilla rule, and the Supreme Court properly denied his motion pursuant to CPL 440.10 to vacate his judgment of conviction on the ground of ineffective assistance of counsel (see People v. Vargas, 112 AD3d 979, 2013 N.Y. Slip Op 08673 [2d Dept 2013] ).

In light of our determination, we need not reach the defendant's remaining contention.

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