On October 29, 2008 the defendant pled guilty to the crime of Attempted Criminal Possession of A Controlled Substance in the Fourth Degree in violation of Penal Law §110-220.09. He was sentenced by this Court to a period of probation supervision of five years. Defendant now moves to vacate that conviction pursuant to Criminal Procedure Law §440.10 and argues that he received the ineffective assistance of counsel. Specifically, defendant maintains that his attorney failed to properly advise him of the immigration consequences of that plea and cites in support the recent United States Supreme Court decision in Padilla v. Kentucky (130 S.Ct. 1473 [2010]). The People have submitted an affirmation in opposition as well as a memorandum of law and the defendant has filed a reply affirmation. The motion is determined as follows.

Initially, a brief recitation of the operable facts leading to the defendant's conviction, as culled from the record before the Court, is necessary. Under Suffolk County Indictment No. 02556-2008 the defendant was charged with Criminal Possession of A Controlled Substance in [*2]the Fourth Degree in violation of Penal Law §220.09, Criminal Use of Drug Paraphernalia in the Second Degree in violation of Penal Law §220.50 and Loitering in the First Degree in violation of Penal Law §240.36. He pled guilty to the reduced and amended charge of Attempted Criminal Possession of a Controlled Substance in the Fourth Degree in exchange for the bargained-for sentence of five years of probation supervision. The defendant was sentenced on June 9, 2009.

On September 8, 2009 the defendant was notified by the United States Citizenship and Immigration Services of its intent to deny his re-registration application and to withdraw the approval of his Temporary Protected Status for failure to maintain eligibility (see Defendant's Exhibit "C"). That decision was apparently premised on the defendant's narcotics related felony conviction (Id.). The defendant has now made application to vacate that plea and conviction citing counsel's alleged failure to properly advise him that his plea could result in his deportation.

On March 31, 2010 the United States Supreme Court issued its decision in Padilla v. Kentucky (130 S.Ct. 1473). In that case the defendant, a lawful resident of the United States for forty years, faced deportation after pleading guilty to drug charges in Kentucky. He subsequently moved to vacate that conviction arguing that his counsel failed to warn him of the immigration consequences of the conviction and even went so far as to advise him that he did not have to worry about the chances of deportation because he had been a resident of the United States for so long (Id., at 1478). The Kentucky Supreme Court denied the defendant's post-conviction relief stating that the defendant's Sixth Amendment guarantee of effective assistance of counsel does not protect a criminal defendant from erroneous advice about deportation because it is merely a "collateral" consequence of his conviction (see Commonwealth v. Padilla, 253 S.W.3d 482 [2008]).

In reversing that determination the United States Supreme Court, after a lengthy commentary on the changes to federal immigration law in the last ninety years, concluded that

"These changes to our immigration law have dramatically raised the stakes of a noncitizen's criminal conviction. The importance of accurate legal advice for noncitizens accused of crimes has never been more important. These changes confirm our view that, as a matter of federal law, deportation is an integral part — indeed, sometimes the most important part — of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes." (Padilla v. Kentucky, supra, at1480).

Based on that determination the Court stated that because deportation as a consequence of a criminal conviction is so closely tied to the criminal process, it is "uniquely difficult" to classify such as either a direct or a collateral consequence (Id., at 1482). Therefore, the Court reasoned, because deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel, the defendant's claim must be examined using the prevailing test for the effectiveness of counsel in Strickland v. Washington (104 S.Ct. 2052 [1984]). [*3]

That conclusion, however, does not end the inquiry at hand. For the defendant herein to take advantage of the holding in Padilla v. Kentucky, it must first be determined whether that ruling should be applied retroactively to cases on collateral review. In order to answer that question, it must be decided whether or not that decision announced a new rule of constitutional criminal procedure. "[A] case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government ... To put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time defendant's conviction became final" (Teague v. Lane, 109 S.Ct. 1060 [1989]). Restated, "when a Supreme Court decision applies a well-established constitutional principal to a new circumstance, it is considered to be an application of an old rule, and is always retroactive" (see People v. DeJesus, 2010 NY Slip Op 52259U [Sup.Ct., New York Cty]; quoting People v. Eastman, 85 NY2d 265 [1995]).

Courts in this state and other jurisdictions have attempted to answer the question of whether Padilla v. Kentucky should be applied retroactively with mixed results (see People v. Kabre, 29 Misc 3d 307 [2010](court concluded that in Padilla the Supreme Court announced a new rule of criminal procedure rather than applied settled law to a new set of facts and that the Padilla rule is not a watershed change that must be applied retroactively to cases on collateral review); Miller v. Maryland, 2010 Md.App. LEXIS 191 [2010]("Padilla v. Kentucky announced a new law. Accordingly, it will not apply retroactively to a case, such as the one now before us, long beyond direct review before it was decided"); compare People v. DeJesus, supra (court found evidence "that the Supreme Court has made it unmistakably clear that the decision is to be retroactively applied on both collateral and direct review"); People v. Nunez, 2010 NY Slip Op 20522 [App. Term, 2nd Dep't]("the holding in Padilla should be applied retroactively. In Padilla, the Supreme Court merely applied the well-established Strickland standard to the facts therein in determining that the defendant had received the ineffective assistance of counsel").

For the reasons that follow this Court finds that the reasoning of those courts which have determined that the holding in Padilla v. Kentucky does not establish a new rule, and is therefore to be applied retroactively, to be more persuasive.

First, by employing the test announced in Strickland v. Washington (104 S.Ct. 2052 [1984]) to determine whether Mr. Padilla received the effective assistance of counsel it is clear that the Supreme Court was applying a certain set of facts to a well established constitutional principle, that being the right to the effective assistance of counsel as guaranteed by the Sixth Amendment and measured by the well-established Strickland test. Therefore, the Court was not announcing a new rule of law (see Teague v. Lane, supra).

Next, the Supreme Court made great effort to confront those concerns raised by the Solicitor General, the State of Kentucky and amici regarding the importance of finality of convictions obtained through guilty pleas and the potential for a flood of petitions requesting identical relief (see Padilla v. Kentucky, supra, at 1483, 1484). The Court reasoned that the strict test announced in Strickland was not easily surmounted and that lower courts "now quite experienced with applying Strickland — can effectively and efficiently use its framework to [*4]separate specious claims from those with substantial merit" (Id., at 1485). The Court also noted that it appeared unlikely that their decision would have a significant effect on those convictions already obtained as the result of plea bargains based on the assertion that for the last fifteen years professional norms have imposed upon counsel an obligation to provide advice on the immigration consequences of a client's plea (Id.). To then make a determination that the rule announced by the Supreme Court should only be applied prospectively would render the aforementioned language and reasoning of the Court superfluous, an action the undersigned will not undertake.

After finding that the holding in Padilla v. Kentucky does not establish a new rule and is therefore to be applied retroactively, this Court's analysis of the instant application is still not complete. To that end the defendant's claims must be examined against the two-part Strickland test. First, it must be established by the defendant that counsel's representation fell below an objective standard of reasonableness and a further finding must be made that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different (Strickland v. Washington, supra.). Despite the defendant's submission of an affidavit from prior counsel indicating he does not remember if he advised the defendant of the immigration consequences of his plea, these determinations are not capable of resolution based on the record presently before the Court.

Accordingly, the defendant's application is granted to the limited extent that this matter will be set down for a hearing to determine if he received the ineffective assistance of counsel and, if so, whether that fact resulted in prejudice to the defendant. It is therefore

ORDERED that the parties are directed to appear before this Court on March 18, 2011 at 9:30 a.m. for a hearing to address the merits of the defendant's application.

The foregoing shall constitute the decision and order of the Court.

Dated: February 24, 2011

______________________

BARBARA KAHN, J.C.C.