Mr. Carballo moves pursuant to CPL440 to vacate his conviction for the Class E felony of Rape in the Third Degree under Indictment 922-99. The basis for the defendant's application is that he was denied effective assistance of counsel in that the immigration consequences of his plea, as required by the Supreme Court of the United States in Padilla v Kentucky 130 SCT 1473 (2010), were not communicated to him.

The initial examination requires the Court to decide whether the Padilla decision is retroactive. This Court has previously ruled that the Supreme Court's ruling is, in fact, retroactive. The Court finds that the plain language in the Supreme Court's decision, Padilla at 1488-84, makes clear that the decision is to have retroactive effect.

"It seems unlikely that our decision today will have a significant effect on thoseconvictions already obtained as a result of plea bargains. For at least the past [*2]

15 years, professional norms have generally imposed an obligation on counsel

to provide advice on the deportation consequences of a client's plea."

While some lower Courts of this state have come to the opposite conclusion, this Court is in agreement with the Appellate Term's decision in People v Nunez (30 Misc 3d 55 app. Term 9 and 10 J.D. 2010). This persuasive authority found Padilla to have a retroactive effect. (See N. Walder "Courts Differ About Retroactive Effect of High Court Ruling" NYLJ 7/27/10 @ P1 for a further discussion of retroactivity). This finding does not end the discussion of the issues raised by the parties in their papers and in the testimony adduced at the hearing.

To resolve the factual issues involved in this case, this Court held a hearing on July 13, 2011 and August 4, 2011. Both sides, as the Court noted during the hearing, were represented ably by their Counsel. Both sides were well versed on the issues and were concise and effective advocates for their respective clients. Mr. Kunken, in his representation of Mr. Carballo, and Ms. Kerr on behalf of the People are commended by this Court for their professional handling of this matter.

The hearing revealed the following facts:

Mr. Carballo entered this country illegally with his father in 1991 at the age of sixteen. Mr. Carballo made no effort to become a legal citizen during his stay in this country prior to his prosecution for Rape in the Third Degree and Endangering the Welfare of a Minor under Indictment 922-99. Mr. Carballo was not eligible for any program or amnesty following his illegal entry into the United States.

On June 17, 1999 the defendant entered a plea of guilty to the Class E Felony of Rape in the Third Degree in satisfaction of the Indictment, which included Endangering the Welfare of a Minor, a Class A Misdemeanor.

The case against Mr. Carballo was very strong. He was arrested in the bathroom of his home in Brentwood in the presence of a 14-year-old female. They apparently had just exited the shower. Mr. Carballo fully admitted his guilt to the felony before then-County Court Judge Lefkowitz.

Mr. Carballo, in testimony at the hearing, testified that he pleaded guilty to avoid a potential four year sentence in State prison (in addition to the fact that he was guilty). He also testified that he would not have pleaded guilty had he known that he would be subject to deportation for his plea to a crime of moral turpitude. Mr. Carballo further testified that his attorney never informed him of the possible immigration consequences of his plea.

In the underlying criminal matter, Mr. Carballo was represented by Antonio Salva, an experienced criminal defense attorney who testified at the hearing that he had no recollection of the case due to the lapse of time. Mr. Salva also testified that it was not his practice to inform certain defendants of the immigration consequences of their respective pleas when this case was litigated, as prior to September 11, 2001, it was not customary for illegal aliens to be deported [*3]when serving local jail sentences, such as Mr. Carballo was offered.

The Court cannot, under the circumstances of this case, credit the testimony of Mr. Carballo regarding any discussion, or lack thereof, of the immigration consequences of his plea with his attorney. The Court also cannot credit the testimony that Mr. Carballo would have pleaded guilty without even discussing the immigration consequences of a plea with his attorney. If deportation truly was Mr. Carballo's prime concern, even more important than a potential four- year sentence, then the Court must find Mr. Carballo's version of his discussions or lack of discussions with his attorney on immigration implausible. This being the case, Mr. Carballo has not met his burden and his Motion to withdraw his plea must be denied.

Even if Mr. Carballo's testimony were to be credited, his Motion would still be denied as Mr. Carballo has failed to show that he was prejudiced by his plea. A conviction after trial could well have led to Mr. Carballo's immediate deportation. At the time of the plea, immigration officials were not present at Suffolk County jail. By reason of a favorable plea bargain, the immigration officials did not become aware, or at least did not act on his conviction. Mr. Carballo's sentence was 120 days in the Suffolk County jail with 5 years Probation.

It is clear that had there been a conviction after trial, a probability under these facts, with a State Prison sentence, also a strong possibility, Mr. Carballo would have been deported. Even if a conviction on the Rape Count after trial had resulted in a non-state prison sentence, Mr. Carballo would have been in no worse a position than he finds himself today. A conviction on the Count of Endangering the Welfare of a Minor would likely have had the same result, as that misdemeanor is also a crime of moral turpitude which would, today, lead to his deportation.

It seems clear to this Court that rather than prejudice the defendant, his plea of guilty to a favorable plea bargain produced the best chance to escape State Prison and avoid deportation at the time of this plea. Padilla did not change the standard of what is effective assistance of counsel. Padilla's facts are vastly different than the case at bar. Mr. Padilla was charged with and pleaded guilty to a drug felony after receiving incorrect advise from his attorney on the immigration consequences of his plea. Mr. Padilla was a legal immigrant, who had been in the United States for forty years.

Mr. Padilla could have reasonably thought that, in view of his long tenure in the United States, coupled with his attorney's advice, that his felony plea would not have immigration consequences. Compare those facts with Mr. Carballo's case and it is not clear at all that Padilla is controlling. Mr. Carballo was an illegal, undocumented alien, and therefore he could have no reasonable expectation that he had any right or privilege to remain in the United States. Mr. Carballo did not receive false or misleading advice prior to his plea. If captured at the time of his illegal entry, he would have been deported. To have a system whereby a person successfully, but illegally, enters this country, gets charged with a felony and despite that has more rights than one detained at the border is illogical. [*4]

No attorney, no matter how gifted, could have possibly envisioned the events of "9-11" and the changes it brought to all of our lives, including the more aggressive handling of "undocumented" aliens by the Bureau of Homeland Security. (A Bureau which was not even contemplated at the time of the plea). The very fact that Mr. Carballo had no right to be in, or remain in, the United States also leaves him open to deportation at the discretion of the immigration authorities. Other Courts have found this alone to be sufficient to find no prejudice to the defendant. See People v Bahamaduo 32 Misc 3rd 1230(A) ( Bronx Sup. Ct. 2011), People v Ramirez 31) Misc 3rd 1228(A) ( Bronx, Sup. Ct. 2011).

For all of the foregoing reasons, the instant application is denied. The Sheriff of Suffolk is directed to return Mr. Carballo to the custody of the Immigration Service from which he came.

This memorandum constitutes the Decision and Order of the Court.

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J.S.C.