The People, etc., respondent, v. Rizwan Arif, appellant.

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Supreme Court, Appellate Division, Second Department, New York.

The People, etc., respondent, v. Rizwan Arif, appellant.

2011–03308 (Ind.No. 736/05)

Decided: March 26, 2014

RANDALL T. ENG, P.J. MARK C. DILLON JOSEPH J. MALTESE COLLEEN D. DUFFY, JJ. Stephen N. Preziosi, New York, N.Y., for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Anne E. Oh of counsel), for respondent.

Submitted—February 25, 2014

DECISION & ORDER

Appeal by the defendant, by permission, from an order of the County Court, Suffolk County (Braslow, J.), dated July 26, 2010, which denied, without a hearing, his motion pursuant to CPL 440.10 to vacate a judgment of the same court rendered July 26, 2005, convicting him of attempted criminal possession of a controlled substance in the fourth degree, upon his plea of guilty, and imposing sentence.

ORDERED that the order is affirmed.

The defendant moved pursuant to CPL 410.10 to vacate a judgment of conviction rendered July 26, 2005, upon his plea of guilty, on the ground that he was deprived of his right to the effective assistance of counsel.   In support of his motion, the defendant averred that his attorney had failed to advise him of the immigration consequences of his plea as required by Padilla v. Kentucky (559 U.S. 356).   The County Court denied the defendant's motion, without a hearing, concluding that he had failed to establish that his attorney's alleged failure to advise him of the immigration consequences of his plea denied him the effective assistance of counsel.   By decision and order on application dated July 14, 2011, a Justice of this Court granted leave to appeal from the County Court's order.

In Chaidez v. United States (_US_, 133 S Ct 1103), 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 AD3d 727, lv denied 22 NY3d 1038;  see also People v. Vansertima, 113 AD3d 705;  People v. Vargas, 112 AD3d 979;  People v. Alvarez, 111 AD3d 843).

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 AD3d 705;  People v. Vargas, 112 AD3d 979;  People v. Alvarez, 111 AD3d 843;  People v. Soodoo, 109 AD3d 1014, 1015).

ENG, P.J., DILLON, MALTESE and DUFFY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

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