109 A.D.3d 138
N.Y. App. Div.2013Background
- Defendant pled guilty to criminal possession of a weapon in the third degree and received a six-month intermittent sentence with weekend service and probation, while supporting a gravely ill son.
- No direct appeal was taken from the 2002 conviction, which was later challenged via CPL 440.10 motion for ineffective assistance of counsel.
- In 2010 removal proceedings were instituted against defendant, who is a lawful permanent resident since 1990, based on the firearm possession conviction.
- Defendant moved to vacate the conviction in 2011, arguing ineffective assistance because his attorney did not advise on immigration consequences under Padilla.
- The motion court granted the CPL 440.10 motion, applying Padilla retroactively without addressing prejudice.
- The People appealed, arguing Padilla has no retroactive effect for final convictions; the court then evaluated Teague-based retroactivity and ultimately held Padilla does not apply retroactively.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Padilla retroactively applies to vacate a final conviction. | defendant | Padilla announced new rule; retroactive | Padilla not retroactive |
Key Cases Cited
- Padilla v. Kentucky, 559 U.S. 356 (2010) (duty to advise on immigration consequences)
- Chaidez v. United States, 133 S. Ct. 1103 (2013) (Padilla announced new law; not retroactive)
- Teague v. Lane, 489 U.S. 288 (1989) (retroactivity framework for new rules)
- People v. Eastman, 85 N.Y.2d 265 (1995) (Teague-based retroactivity governs in New York)
- People v. Baret, 99 A.D.3d 408 (2012) (Padilla retroactivity recognized in First Dept)
- People v. Ramos, 100 A.D.3d 487 (2012) (Padilla retroactivity recognized in First Dept; lv denied)
- People v. Rajpaul, 100 A.D.3d 1183 (2012) (Padilla retroactivity recognized in Third Dept)
- People v. Oouch, 97 A.D.3d 904 (2012) (Padilla retroactivity recognized in Third Dept)