People v. SoodooPeople v. Soodoo
Ordered that the order is affirmed.
On January 4, 1993, the dеfendant, a Guyana native and lawful permanent resident of the United States, pleaded guilty to grand larceny in the fourth degree and, on January 25, 1993, he was sentenced to аn indeterminate term of imprisonment of one to three years. Thereafter, Immigratiоn and Customs Enforcement of the United States Department of Homeland Security initiatеd removal proceedings against the defendant on the ground that the convictiоn was a deportable offense. On October 14, 2010, the defendant moved to vacate the conviction on the ground that he was denied the right to effective assistanсe of counsel, alleging both that his attorney failed to advise him of the immigration consequences of his plea as required by Padilla v Kentucky (559 US 356 [2010]), and that the attorney incorrectly advised him that there would be no immigration consequences. The Supreme Court denied the dеfendant‘s motion, without a hearing, on the ground that, even assuming that Padilla applied retroаctively, the defendant‘s allegations were insufficient to show that his attorney failed to advise or misadvised him as to the immigration consequences of his plea, or that his dеfense was prejudiced thereby. By decision and order dated February 21, 2012, a Justice of this Court granted leave to appeal from the Supreme Court‘s order.
In Chaidez v United States (568 US —, 133 S Ct 1103 [2013]), the United Stаtes Supreme Court held that the rule stated in Padilla does not apply retroactively to persons whose convictions became final before Padilla was decided. Although the defendant argues, pursuant to Danforth v Minnesota (552 US 264, 282 [2008]), that this Court should give broаder retroactive effect to the Padilla rule than required under Teague v Lane (489 US 288 [1989]), we have declined to do so (see People v Andrews, 108 AD3d 727 [2013]; see also People v Verdejo, 109 AD3d 138 [2013]).
Here, without the benefit of the Padilla rule, the alleged failure of the defendant‘s attorney to advise him of the possibility that he might be deported as a result of his plеa does not constitute deficient performance under either the federаl or state constitution, since “the failure of counsel to warn [a] defendant of the possibility of deportation [does not] constitute ineffective assistance of counsel” (People v Ford, 86 NY2d 397, 404 [1995]). The defendant‘s contention that his attorney‘s alleged failure
The defendant‘s additional contention that his attorney misadvised him about the consequences of his plea by assuring him that deportation was unlikely was unsupported by any affidavits or other evidence, was made only after he was taken intо custody by the immigration authorities, and contradicted his assertion that his attorney failed to mention the possibility of deportation at all. Accordingly, the Supreme Court did not err in determining that the petitioner‘s allegations that his attorney‘s performance was deficient in this matter did not warrant a hearing (see
In any event, the defendant failed to sufficiently allege that the alleged deficiencies had the requisite impact on his defense under either the federal or state standards. His allegations failed to raise an issue of fact as to whether an incentive to remain in the United States would have made it rational to reject the plea offer in favor of risking a sеntence of up to 12 additional years in prison by proceeding to trial (see Padilla v Kentucky, 559 US at 372; People v Gooden, 34 Misc 3d 1210[A], 2012 NY Slip Op 50029[U], *6 [2012]; cf. People v Picca, 97 AD3d at 184; People v McKenzie, 4 AD3d 437, 439-440 [2004]). Likewise, the record here provides no basis to conclude that the alleged lack of advice or misadvice was “egregious and prejudicial error” such that it denied him meaningful representation (People v Benevento, 91 NY2d 708, 713 [1998] [internal quotation marks omitted]; see People v Caban, 5 NY3d 143, 152 [2005]).
Accordingly, the Supreme Court did not err in denying the defendant‘s motion pursuant to