The defendant moves to vacate judgment pursuant to CPL § 440.10 (1) (h). The People oppose the motion. Even accepting the defendant's allegations on this motion as true, he cannot show that his attorney failed to give him constitutionally sufficient advice. Therefore, his motion must be denied.

On August 26, 1999, the defendant was arrested and charged with one count of Criminal Sale of Marihuana in the Fourth Degree in violation of PL § 221.40, one count of Criminal Possession of Marihuana in the Fourth Degree in violation of PL § 221.15 and one count of Criminal Possession of Marihuana in the Fifth Degree in violation of PL § 221.10 [1] (the "First Case").

On October 7, 1999, the defendant was unable to appear in court on the adjourn date because he had been rearrested for Criminal Possession of Marihuana in the Fifth Degree and Unlawful Possession of Marihuana under Docket Number 99N088286 (the "Second [*2]Case").

On October 26, 1999, the People offered a plea to the defendant: in exchange for pleading guilty to PL § 221.15, the defendant would be sentenced to four days community service. The case was adjourned to November 17, 1999 on the defense counsel's consent. On November 17, 1999, the defendant pleaded guilty to PL § 221.10 in the First Case, the defendant was sentenced to four days community service and the Second Case was dismissed. The defendant did not file a direct appeal.

The defendant moves to vacate his conviction on the ground that he was given ineffective assistance of counsel because his attorney, Wallace Prudansky, Esq., failed to advise him "that pleading guilty to [PL § 221.15] would put me at a high risk of facing deportation." The defendant also maintains that: [1] he "did not understand the plea and its consequences"; [2] he "pled guilty because it was the only avenue presented to [him]"; and [3] that he "did not appreciate the seriousness of pleading guilty to the misdemeanor." The defendant has not provided an affidavit from his former attorney, claiming that such an affidavit is unavailable.

The People argue that the motion should be denied summarily because it is solely based upon the defendant's self-serving statements. The People claim that their evidence against the defendant was strong. On August 26, 1999, the defendant was observed to have exchanged a bag of marijuana with two separately charged defendants in exchange for money. When the defendant was arrested, forty-nine small bags of marijuana, with an aggregate weight of one pound, were recovered from the front passenger seat of his motor vehicle. The two bags of marijuana that were sold to each of the separately charged defendants were also recovered. Field tests on all the marijuana recovered returned positive results.

The People also argue that the defendant's attorney had no duty to advise his client about the possible immigration consequences, and maintain that Padilla v. Kentucky (130 SCt 1473 [2010]) is not retroactive. Alternatively, the People contend that the defendant cannot demonstrate prejudice as a result of his counsel's alleged deficient performance.

Discussion

Due process requires that before accepting a defendant's plea of guilty, the Court must determine whether the defendant's waiver of his rights is voluntary, knowing, and intelligent (Brady v. United States, 397 US 742 [1970]). In New York, the defendant must understand the plea and its consequences, and that the plea was an intelligent and voluntary choice (People v. Ford, 86 NY2d 397 [1995]; People v. Moissett, 76 NY2d 909 [1990]; People v. Harris, 61 NY2d 9 [1983]). Further, the Court must inform the defendant of certain rights and ask the defendant whether he waives those rights once he has been informed of them in the first instance (Boykin v. Alabama, 395 US 238 [1969]). These rights include the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront his accusers (id).

Under CPL § 440.10 (1) (h), a judgment of conviction should be vacated if it "was obtained in violation of a right of the defendant under the constitution of this state or of the United States." CPL § 440.10(1)(h). However, a motion pursuant to CPL § 440.10 is not a substitute vehicle, to be used by a defendant for grounds that should have been raised on direct [*3]appeal (see People v. Cooks, 67 NY2d 100 [1986]). Rather, it is designed to inform a court of facts not appearing on the record and unknown at the time judgment was entered that would, as a matter of law, undermine the judgment (People v Harris, 109 AD2d 351, 353 [2d Dept 1985], lv denied 66 NY2d 919 [1985]).

The court may, upon reaching the merits, still deny the motion without a hearing if the moving papers, inter alia, fail to allege a ground constituting a legal basis for the motion (CPL 440.30 [4] [a]) or fail to allege sufficient facts to support the legal ground asserted (CPL 440.30 [4] [b]; People v Session, 34 NY2d 254, 255-256 [1974]). The court may also deny the motion summarily if an essential factual allegation "is contradicted by a court record . . . , or is made solely by the defendant and is unsupported by any other affidavit or evidence, and under these and all the other circumstances attending the case, there is no reasonable possibility that such allegation is true." (CPL 440.30 [4] [d].)

At the outset, the Court reject's the People's argument that Padilla is not retroactive. The US Supreme Court held that the Sixth Amendment requires criminal defense attorneys to advise their noncitizen clients if there is a risk of deportation as a consequence of a conviction (Padilla v. Kentucky, 130 SCt 1473, 1482 [2010]). This Court held in People v. Bennett (28 Misc 3d 575 [2010]) that the rule in Padilla should be applied retroactively to convictions that became final before Padilla was rendered. Based upon the reasoning in Bennett, this Court will apply Padilla retroactively to convictions that became final before Padilla was entered.

However, the instant motion should be denied summarily because the defendant's unsubstantiated claims are insufficient to warrant a hearing. According to the "Notice to Appear in Removal Proceedings" dated February 2, 2010 (the "Notice") that the defendant has provided to the Court, the defendant was placed into removal proceedings because of the instant conviction, as well as his conviction in Bronx Criminal Court on June 2, 2003 for criminal possession of marihuana in the fourth degree in violation of PL § 221.15 (Docket No. 2003BX023778).

The defendant claims that his attorney did not inquire as to his immigration status, did not explain the charges against him and failed to advise him as to all possible dispositions. While the defendant's attorney had an obligation to advise his client about the risks of deportation pursuant to Padilla, the conviction that the defendant is now challenging did not compel removal under federal immigration law. Under 8 USC § 1227 [a] [2] [B] [i], deportation may not be based solely on a conviction involving the possession of 30 grams or less of marijuana for personal use.

Rather, according to the Notice, the conviction that the defendant is trying to vacate in this case, along with the defendant's 2003 conviction for possession of marijuana in Bronx Criminal Court, is the basis for the removal proceedings the defendant is now facing. Indeed, the 2003 conviction was for possession of more than 2 ounces of marijuana, which is certainly more than 30 grams of marijuana. Standing alone, the 2003 conviction is grounds for deportation under federal immigration law.

The sum and substance of the advice that the defendant's attorney was required to give him in 1999 at the time the defendant entered his plea in this case, concerning immigration consequences, would have essentially been "do not criminally possess marijuana [*4]again, because a subsequent conviction for criminal possession of marijuana is grounds for deportation (pursuant to 8 USC § 1227)." This is common sense advice, and Padilla does not require attorneys to advise their clients that they shouldn't commit crimes in the future. As a member of society, the defendant was fully aware of his obligation to lead a law abiding life. Therefore, even accepting the defendant's allegations as true, he did not show that his attorney failed to give him constitutionally sufficient advice.

The defendant received a very favorable plea offer. His attorney secured a class B misdemeanor plea offer when the defendant was facing two separate cases, one containing charges that he was selling marijuana. If convicted of selling marijuana, the defendant would have certainly been facing deportation proceedings under federal immigration law (see 8 USC § 1227 [a] [2] [B] [i]). In addition, the second misdemeanor marijuana case that the defendant was facing was dismissed in exchange for his guilty plea in this case. That deal assured that if the defendant remained out of trouble, his immigration status would not be jeopardized because he would only have one single offense involving possession of marijuana of less than 30 grams.

Nowhere in his affidavit does the defendant claim he would have proceeded to trial or that he had any viable defense strategies concerning the charges he was facing in the underlying criminal case. The Court finds that even if the defendant was ineffectively assisted, he cannot substantiate a claim that he was prejudiced thereby (see Strickland v. Washington, 466 US 668 [1984]).

Accordingly, the defendant's motion to vacate his conviction is denied in its entirety.

Any requests for relief not expressly addressed herein have nonetheless been considered and are hereby denied.

This constitutes the decision and order of the Court.

Dated:March 15, 2011So Ordered:

New York, New York______________________

Hon. Lynn R. Kotler, J.C.C.